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2015 DIGILAW 202 (PAT)

Rabindra Singh v. State of Bihar

2015-01-30

ADITYA KUMAR TRIVEDI

body2015
JUDGMENT Case has been called out. None appears on behalf of appellant while the learned Additional Public Prosecutor is present. In the background of principle laid down by the Hon’ble Apex Court reported in 2013 (2) P.L.J.R. 276 (SC), whereunder the appellate Court has been held to be quite competent to dispose of the appeal even in absence of learned counsel for the appellant as well as without appointing Amicus Curiae, the record has been taken up with the assistance of the learned Additional Public Prosecutor, who has been heard in detail as well as materials available on the record have minutely been gone through. 2. Sole appellant Ravinder Singh has been found guilty for an offence punishable under Section 436 of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years vide judgment of conviction and sentence dated 19.03.2002 passed by Presiding Officer, Fast Track Court, Gaya in Sessions Trial No.169 of 1993/ 52 of 2001. 3. PW-6, Suresh Sao gave his fard-bayan on 29.03.1992 at about 8.15 a.m. alleging inter alia that in the preceding night while he was sleeping at his Darwaza of his shop, awaken to urinate and during course thereof, had seen Ravinder Singh standing near his shop. His shop was under flame. He had also seen Shiv Janam Singh, Nagendra Singh, Kail Singh, Rajesh Singh standing at their house which lies behind his house. Seeing the fire, he raised alarm whereupon villagers assembled and Ravinder Singh, Shiv Janam Singh, Nagendra Singh, Kail Singh, Rajesh Singh gone inside their house. They tried their best to extinguish fire, but remained unsuccessful and on account thereof, the hut along with the articles having kept inside completely burnt and on account thereof, he sustained loss of Rs.10,000/-. He had disclosed the event as well as had also disclosed names of Ravinder Singh and his family members to have lit fire to the villagers. It has further been disclosed that after extinguishing flame, all the accused persons came out from their house. Therefore, he apprehended that all the accused in connivance with each other had lit fire. The motive therefor has been disclosed as accused persons were insisting to remove his shop as it was in front of their house and for that, on 27.03.1992, panchayati was convened at the instance of accused Ravinder Singh, Kail Singh. Therefore, he apprehended that all the accused in connivance with each other had lit fire. The motive therefor has been disclosed as accused persons were insisting to remove his shop as it was in front of their house and for that, on 27.03.1992, panchayati was convened at the instance of accused Ravinder Singh, Kail Singh. It has further been disclosed that he had paid Rs.65,00/- to Ravinder Singh at an earlier occasion for purchase of oxen which, Ravinder Singh flatly refused to return. 4. On the basis of the aforesaid fard-bayan, Paraiya P. S. Case no.23 of 1992 was registered followed with investigation as well as submission of chargesheet, the basis of trial which ultimately concluded adverse to sole appellant Ravinder Singh while remaining were acquitted, hence this appeal. 5. Defence case, as is evident from mode of cross-examination as well as statement under Section 313 of the Cr.P.C. is of complete denial of occurrence. It has also been flashed that on account of illicit relationship persisting amongst the wife of informant with accused/ appellant Ravinder Singh, he has been falsely implicated. Furthermore, claim over disputed land has also been made on behalf of accused/ appellant, hence a ground of false implication. Though, none have been examined on behalf of defence. However, material exhibit has been brought up on record by way of photograph. 6. In order to support its case, prosecution had examined altogether nine PWs, out of PW-1 Krit Yadav, PW-2 Raghu Sao, PW-3 Sunder Yadav, PW-4 Naga Sao @ Nageshwar Prasad, PW-5 Dhatradhari Yadav, PW-6 Suresh Sao, PW-7 Jamuna Yadav, PW-8 Dina Nath Prasad, PW-9 Arvind Kumar. Side by side also exhibited the documents as Exhibit-1 fard-bayan, Exhibit-2 signature of Suresh Sao on the protest petition, Exhibit-2/1 signature of Suresh Sao on the protest complain case no.639 of 1992, Exhibit-3 fard-bayan of Paraiya P. S. Case no.23 of 1992, Exhibit-4 Petition dated 23.04.1992 filed by the informant, Exhibit-5 protest complaint, Exhibit-6 photo copy of supervision note, Exhibit-7 to 7/1 certified copy of order dated 19.04.1994, Exhibit-8 Certified Copy of petition. 7. Now, coming to status of the witnesses, it is apparent that PW-2 who happens to be uncle of PW-6, informant as well as PW-6, the informant has claimed to be an eye witness to occurrence while PW-3 Sunder Yadav has been declared hostile. 7. Now, coming to status of the witnesses, it is apparent that PW-2 who happens to be uncle of PW-6, informant as well as PW-6, the informant has claimed to be an eye witness to occurrence while PW-3 Sunder Yadav has been declared hostile. PW-9 Arvind Kumar is a formal witness, PW-8 Dina Nath Prasad is I.O. Remaining witnesses, PW-1 Krit Yadav, PW-4 Naga Sao @ Nageshwar Prasad, PW-5 Dhatradhari Yadav, PW-7 Jamuna Yadav are the hearsay witness. 8. Before coming to discuss the evidence of other witnesses, first of all, the evidence of eye witnesses should be taken. PW-2 during his examination in-chief had stated that on the alleged date and time of occurrence, while he was in a way to harvest wheat crop and reached near the shop of Suresh Sao, he found Ravinder Singh having wick in his hand from which, he lit fire in the hut/ shop of Suresh Sao. He was accompanied by Shiv Janam Singh armed with Pasuli, Nagendra Singh, Kail Singh, Rajesh Singh armed with lathi. Seeing the activity of Ravindra Singh, he enquired whereupon he was chased by Shiv Janam Singh. Subsequently, he came back and found the hut completely gutted. Fire brigade was informed and with the assistance thereof, fire was extinguished. He had further stated regarding the motive as on account of persistent demand by accused persons to remove the hut as well as Ravinder Singh having declined to return back Rs.62,00/-, which was paid to him by the informant at an earlier occasion. During cross-examination, pair photo was shown to him which he identified that of Aruna Devi with accused Ravinder Singh. From Para-24 of the cross-examination, it is evident that contradictions has been put to him wherefrom, it is apparent that he had not claimed to be an eye witness to occurrence at an earlier occasion and the same has been corroborated by PW-8, I. O. under Para-7. 9. PW-6, Suresh Sao, informant had stated that when he awaken to urinate, he saw Ravinder Singh having wick in his hand through which he lit fire in his shop. Other accused persons were armed with deadly weapon. He raised alarm over which villagers began to assemble. They tried to extinguish the fire, but could not succeed. He had stated before the witnesses that Ravinder Singh had lit fire over which witnesses have also stated that they have seen. Other accused persons were armed with deadly weapon. He raised alarm over which villagers began to assemble. They tried to extinguish the fire, but could not succeed. He had stated before the witnesses that Ravinder Singh had lit fire over which witnesses have also stated that they have seen. He had also narrated the motive as accused persons were insisting upon for removal of the aforesaid shop and for that, Panchayati was convened. He had further disclosed that he had also paid Rs.20,000/- to the accused which they have not returned. He had further stated that Ravinder Singh and others have assaulted his wife subsequently. However, the aforesaid matter was compromised. During cross-examination, claim has also been raised with regard to the land over which shop has been established by the prosecution to be Khesra no.648 appertaining to Khata no.38 as is evident from Para-5. In Para-6, he had denied the suggestion that the land under dispute was taken on settlement by the forefather of accused. However, in Para-10 of his cross-examination, he had admitted that this land happens to be in name of forefather of accused. 10. Furthermore, from Para-8 of his cross-examination, it is apparent that his attention has been drawn up towards the fard-bayan wherein he had not claimed Ravinder Singh to be responsible for litting fire and under Para-10, his attention has been drawn up towards his previous statement wherein also he failed to identify Ravinder Singh, who lit fire. The contents of further statement have been corroborated by the I.O. at Paras-6, 7 of his cross-examination. 11. Consequent thereupon, it is apparent that identification of appellant Ravinder Singh to be seen by them having armed with wick and had lit fire in his hut/ shop is found developed during course of evidence and on that very score, it could be certainly a material development and would, accordingly give an adverse impact over, testimony of PW-2 as well as PW-6 over its genuineness as well as authenticity, reliability. 12. 12. Furthermore, it is also surprising that neither PW-2 had deposed during his examination in-chief that he had seen PW-6, his nephew, awaken at the relevant time nor the theme of raising alarm by PW-6 at the time of litting fire and in likewise manner, PW-6 also failed to disclose that while Ravinder Singh was litting fire apart from having presence of other co-accused (since acquitted), he had also seen PW-2, his uncle. Therefore, presence of either of two at the crucial moment became doubtful. 13. In the aforesaid background, when the evidence of other PWs are taken up, they have reiterated the version whatever they perceived through PW-6, the informant. None of them claimed to have seen the accused persons. 14. From the judgment impugned, it is apparent that learned lower Court had not taken into consideration the aforesaid inconsistency persisting on the record. It is further evident from the judgment impugned that reliance has been placed over protest petition which has got no relevancy in the eye of law apart from fact, that PW-6 happens to be a literate fellow whose signature is found over fard-bayan, the initial prosecution version wherein, he had not claimed that he had seen Ravinder Singh litting fire in his hut nor having wick in the his hand. 15. Now, coming to motive, that will not give a plank under the banner of presumption unless and until the obligation, which the prosecution carries, is found duly discharged. Moreover, on this score also there happens to be inconsistence amongst PW-2 as well as PW-6 coupled with the fard-bayan. In fard-bayan as well as in the evidence of PW-2, the amount has been shown as Rs.62,00/- which is said to be paid by the informant to the accused while PW-6 during course of his evidence had disclosed it as Rs.20,600/-. 16. Another aspect with regard to the allegation is further perceived from the evidence of PW-6 in Para-9 whereunder, he had stated that fire brigade was informed in writing over which the name of the accused persons have also been disclosed. The aforesaid script has not been brought up on record which could have divulged the fact whether any of the accused including the appellant were identified as the person who lit fire in the hut/shop of informant nor the same was traced out during course of investigation. 17. The aforesaid script has not been brought up on record which could have divulged the fact whether any of the accused including the appellant were identified as the person who lit fire in the hut/shop of informant nor the same was traced out during course of investigation. 17. The cumulative effect of the material development coupled with the infirmities persisting in the prosecution case, did not inspire confidence with regard to conclusion arrived at by the learned trial Court. Consequent thereupon, the judgment of conviction and sentence recorded by the learned trial Court is set aside. Appeal is allowed. The appellant is on bail, hence is discharged from its liabilities.