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Jharkhand High Court · body

2017 DIGILAW 2085 (JHR)

Manik Singh v. State of Jharkhand

2017-12-04

RATNAKER BHENGRA

body2017
ORDER : Heard learned counsel for the appellants and learned counsel for the State. 2. Appellants are aggrieved by the judgment of conviction dated 5.10.1999 and order of sentence dated 7.10.1999 passed by the learned 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 176 of 1990 whereby, the appellants were found' guilty and convicted for the offence under Sections 436/34, IPC and sentenced to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs. 1,000/- each which after realization was to be paid to the informant. In default of payment of fine appellants were to undergo further RI for six months each. 3. The prosecution case• was instituted on the basis of FIR (Ext.-2) of the informant Girja Devi, PW 4 recorded on 11.10.1989. The prosecution case in brief, is that the land of Khata Nos. 123 and 45, area 50 decimals of village Cherabar was purchased from Mehrali Mian for consideration of Rs. 5,000/-. At the same place accused Manik Singh had' also purchased land from said Mehrali Mian. Regarding the land purchased by the informant a case was going on and the case was decided in their favour but the accused had filed appeal which was pending. It is further alleged that over the purchased land a house was constructed. She was residing in the said house with her children for the last two years. It is further alleged that in the night of Tuesday- her husband was not in the house who had gone to his in-law house. She along with the children were sleeping near the house. At about 1 a.m. she saw fire flame in the house and' in the light of flame she saw accused Manik Singh. 'Narayan Singh and an unknown person who after setting fire in her house were fleeing away. She and her daughter Fulkumari raised alarm, then Gopal Singh Muneshwar Singh and other' villagers came there and extinguished the fire. 4. On the basis of the FIR Chainpur P.S. case No. 83 of 1989 corresponding to G.R. Case No. 1284 of 1989 was registered. Mer investigation. police submitted charge-sheet against both the accused appellants, Cognizance of the offence was taken and case was committed to the Court of 'Sessions. Charges were framed against the accused under Section 436/34, IPC however accused denied the charges. Mer investigation. police submitted charge-sheet against both the accused appellants, Cognizance of the offence was taken and case was committed to the Court of 'Sessions. Charges were framed against the accused under Section 436/34, IPC however accused denied the charges. After the trial, accused Were convicted' under Section 436/34. IPC and sentenced as aforesaid. Hence, this appeal. 5. In support of its case. prosecution had examined altogether six witnesses. 6. PW 4 is Girja Devi, the informant of the case. She deposed that on the day of occurrence she was sleeping with her children in the courtyard of her house. Her house was burning and then she awoke. She saw both the accused Manik Singh and Narayan Singh were standing after setting the house on fire. She raised alarm on which Gopal Singh. Muneshwar Singh and other villagers came and thereafter accused fled away. In her cross-examination she said about land dispute with the accused. She further said flame was rising ten porsa high (50 feet) and in flames she saw both the accused fleeing away. 7. PW 5 is Fulkumari Devi, the daughter of informant. She deposed that on the day of occurrence. she was sleeping with her mother. Due to fire her mother raised alarm. Then she saw both the accused armed with weapons fleeing away. Her mother threw all the articles of the house, so articles were safe. In cross-examination, she said on rising of flame of fire, she awoke. 8. PW 6 is the Investigating Officer of the case. He has proved the formal FIR which was marked as Ext. 2. At para 7 of his cross-examination he said that he had seized burnt woods but he did not prepare the seizure list. 9. PW 1. Gopal Singh, PW 2 Jugeshwar Singh and PW 3 Doman Singh are all hearsay witness. PW 1 and PW 2 deposed that they were sleeping in the house. On hearing alarm of the informant, they reached at the place of occurrence. PW 3 is the husband of the informant. He deposed that on the day of occurrence he was at his in law's place. 10. The learned counsel for the appellants submitted that there is a land dispute between the parties and due to the said dispute the appellants were falsely implicated in this case. PW 3 is the husband of the informant. He deposed that on the day of occurrence he was at his in law's place. 10. The learned counsel for the appellants submitted that there is a land dispute between the parties and due to the said dispute the appellants were falsely implicated in this case. The learned counsel for the appellants further submitted that all the prosecution witnesses are interested witnesses. The learned counsel for the appellants, says that PW 3 is the husband of the informant and he is the hearsay witness. Learned counsel for the appellants submitted that PW 4 who is the informant in this case deposed that the occurrence took place in the night of a Tuesday at about. 1 a.m. and at that time she was sleeping outside her house in the courtyard with her children and saw flames of fire in the house and both the appellants along with other known persons standing there. The learned counsel for the appellants submitted that there is no eye-witness of the alleged occurrence and the informant (PW 4) deposed that she was sleeping in the courtyard of her house with her children and she woke up on seeing the flames of fire therefore, meaning thereby she had not seen the persons who had set fire to the house. Learned counsel further submitted that the evidences of PW 1 and PW. 2 are not reliable as the said witnesses are hearsay and related witnesses and as such they are highly interested witnesses. The learned counsel submitted that the learned Court below has based the conviction of the appellants, on the evidence of the informant Girja Devi, PW 4 that accused were seen fleeing away from the place of occurrence. But the evidence of informant PW 4 is unreliable in view of the fact that the informant has deposed that she woke up at the time when the alleged house was burning. But in her cross-examination she said that flame' thereof was rising about 50 feet high which cannot be possible within a moment. It is also unbelievable that a person after putting fire in a house will remain standing there till some witnesses come and identify them. There is no merit in the deposition of PW 4 to believe the prosecution case. It is also unbelievable that a person after putting fire in a house will remain standing there till some witnesses come and identify them. There is no merit in the deposition of PW 4 to believe the prosecution case. So far as evidence of Fulkumari Devi, PW 5 is concerned, the learned counsel for the appellants submitted that when she woke up on alarm of her mother she saw the appellants fleeing away having bhala and garasha after setting fIre' to the house She also deposed that in the flames of fire she identified the accused Manik Singh and Narayan Singh. Learned counsel for the appellants submitted that• no wherein the evidence of PW 5 it has come that she saw the appellant setting fire to the house: Learned counsel for the appellants submitted that PW 1, PW 2 and PW 3 are hearsay witnesses and they heard about the incident from the informant PW 4. So far as PW 6 who is I.O. of this case is concerned, the learned counsel submitted that I.O. had seized the burnt wood but seizure list of the same were not prepared. This witness (I.O.) has deposed that all the house hold articles were found in safe condition outside the house which is consistent with the evidence of PW 5. Learned counsel further submitted that no prosecution• witness said that accused were setting fire in the house of the informant with match sticks or any other instrument. Lastly, the learned counsel for the appellants has relied upon a case of Sitaram Pandey @ Sita Pandey v. State of Bihar reported in 1990 East CrC 473 (Pat) and submitted that in the said case, the appellant was acquitted of the charge under Section 436, IPC and present case of appellants stands on similar footing. 11. On the other hand learned counsel for the State has argued out this case at length and submitted that there is a land dispute between the parties which is standing long. The learned counsel for the State has stated that I.O. was examined in this case and he fully supported the prosecution case and established the place of occurrence from which it seems that both the accused along with one unknown person had mala fide intention to commit mischief by burning the house of the informant. The learned counsel for the State has stated that I.O. was examined in this case and he fully supported the prosecution case and established the place of occurrence from which it seems that both the accused along with one unknown person had mala fide intention to commit mischief by burning the house of the informant. That learned counsel further submitted that both the appellants including one unknown person were seen standing at the place of occurrence after• setting fire, as would be evident from the deposition of the PW 4. Likewise, PW 5 also deposed that she saw the accused standing at the place of occurrence after putting fire in the house. Prosecution has fully established the date and time of occurrence, the house over the land involved in the ceiling case was standing and portion of that house was burnt. The learned counsel for the State has further stated that the prosecution has been able to substantiate the charge levelled against the accused persons by cogent and reliable evidence and both the accused persons were seen by PW 4 and PW 5 burning the house. The learned counsel for the State further submitted that judgment of conviction passed by the learned Court below is proper and requires no interference. 12. After hearing both the parties and going through the records, I find that prosecution case mainly rest on the evidences of the informant PW 4 and informant's daughter PW 5. Both these prosecution witnesses have deposed that they saw both the accused-appellants in the flames of fire while fleeing away from the place of occurrence. On appreciation of evidence of the informant PW 4, I find that in para 1 she deposed that she saw both the accused-appellant standing on the place of occurrence after setting the house on fire. This evidence of informant does not inspire confidence for the reason that a culprit who is setting fire in a dwelling house and that too in the night at 1 O'clock will not stand at the place of occurrence after setting fire in the house and give occasion for the informant to see him. This is not believable. 13. Informant PW 4, in her cross-examination at Para 8 has said that flame of fire was rising ten 'porsa' (about 50 feet) high. This is not believable. 13. Informant PW 4, in her cross-examination at Para 8 has said that flame of fire was rising ten 'porsa' (about 50 feet) high. But informant's daughter PW 5 at para 2 deposed that her mother had thrown all the articles of the house and hence the articles were safe. This evidence of mother (PW 4) and daughter (PW 5) is not acceptable for the reason that when a flame of fire is rising fifty feets high then nobody would dare to put there life in danger to save house hold articles. This raises. suspicion on the prosecution case. 14. Investigating Officer of this case, PW 6 in his cross-examination at para 7 deposed that he had seized burnt wood but he did not prepare the seizure list so, seizure list was not made, which is a serious lacunae in prosecution case. 15. The case relied on by the petitioner Sitaram Pandey (supra) has almost similar fact as this case. In that case, it was held that it was a case of suspicion. against the appellant and the law is well settled that suspicion however, strong cannot take the place of proof. 16. The present case is also a case of suspicion against the appellant and prosecution has failed to bring sufficient material on record for proving the charge against the appellants. 17. To reiterate this case has to be seen in the back drop of a pending land dispute amongst the parties. No one has actually, even if one was to go by the versions of the two witnesses informant and her daughter. that is PW 4 and PW 5 saw anyone actually setting fire to the house. The informant mother in her Jardbeyan has made no mention of weapon. while she and her daughter in their evidence do so. No independent witness identified the appellants and definitely even if the house was set ablaze the appellants would not stand there to be identified. Finally, if the house was burning to the extent that flames were up to 50 feet then it is indeed strange that the informant was able to get all household articles out. That too in the absence of the husband of the informant. The I.O.'s non-production of any seized articles or seizure list does not aid the prosecution. For all these above reasons. That too in the absence of the husband of the informant. The I.O.'s non-production of any seized articles or seizure list does not aid the prosecution. For all these above reasons. considerable doubts cast on the case of the prosecution. 18. For the reasons stated above and also having gone through the said judgment cited by the learned counsel for the appellants. I am of the opinion that this a fit case to acquit the appellants from the charge levelled against them. Accordingly, this criminal, appeal is allowed and the judgment of conviction dated 5.10.1999 and order of sentence dated 7.10.1999. passed by the learned 7th Additional Sessions Judge. Palamau at Daltonganj in Sessions Trial No. 176 of 1990 are set aside. The appellant are acquitted from the charge levelled under Section 436/34 of the Indian Penal Code. Since the appellants are on bail they are discharged from the liability of their bail bonds. Appeal allowed.