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2017 DIGILAW 244 (ORI)

Banamali Mohanta v. State of Orissa

2017-03-08

S.K.SAHOO

body2017
S. K. Sahoo, J. Astounding accusation leveled against a father-in-law that he set fire to the house of his son-in-law who did not agree to marry his second daughter after the death of his first wife who was the first daughter of the father-in-law and married at another place. The petitioner Banamali Mohanta is the father-in-law of the informant Kanhu Charan Mohanta. The petitioner was charged under section 436 of the Indian Penal Code in the Court of learned Asst. Sessions Judge, Udala in Sessions Trial Case No.10/84 of 1992 on the accusation that on 15.02.1992 at about 12 noon at village Dugudha, he committed mischief by fire, intending to cause, or knowing it to be likely that he will thereby cause destruction of the house of the informant (P.W.1) used as human dwelling. The learned Trial Court vide impugned judgment and order dated 30.09.1992 found the appellant guilty under section 436 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/-(rupees five thousand), in default of payment of fine, to undergo R.I. for a further period of three months. The petitioner preferred an appeal in the Court of Session which was heard by the learned Additional Sessions Judge, Baripada in Criminal Appeal No.227/122 of 1999-92 and vide impugned judgment and order dated 21.07.2000, the appeal was dismissed, hence the revision. 2. The prosecution case as per the first information report lodged by Kanhu Charan Mohanta (P.W.1) before the Officer in Charge of Sarat Police Station is that on 15.02.1992 at about 8.00 a.m. he had been to village Panaposi for attending obsequies ceremony and on that day his parents had also been to the jungle to collect leaves and his wife Adaramani Mohanta (P.W.9) was only present in the house and at about 12 noon, the thatched house of the informant was set on fire by the petitioner which was seen by P.W.9 and the petitioner fled away towards the jungle after setting fire to the house. It is further stated in the first information report that co-villager Hitai Murmu and others had seen the occurrence. When the house caught fire, P.W.9 cried aloud and hearing her cry, the villagers came there and extinguished the fire but the paddy crops and other valuables were gutted in fire. It is further stated in the first information report that co-villager Hitai Murmu and others had seen the occurrence. When the house caught fire, P.W.9 cried aloud and hearing her cry, the villagers came there and extinguished the fire but the paddy crops and other valuables were gutted in fire. In the evening hours, when the parents of the informant returned from jungle, the petitioner came to their house and threatened them not to report the matter before the police station or else the family members would face dire consequence. After the informant returned from village Panaposi, he was told about the incident and accordingly, he lodged the F.I.R. 3. On the basis of the first information report presented by P.W.1, Sarat P.S. Case No.07 of 1992 was registered on 20.02.1992 under section 436 of the Indian Penal Code and in absence of the Officer in Charge of the Police Station, P.W.12 Jaya Krushna Nayak, who was the A.S.I. of Police not only registered the case but also took up investigation. During course of investigation, he visited the spot, examined the witnesses, seized some half burnt paddy, ashes, half burnt bamboos and wood under seizure list Ext.2, arrested the petitioner and forwarded him to Court and after completion of investigation, submitted charge sheet against the petitioner on 29.02.1992 under section 436 of the Indian Penal Code. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court framed charge on 05.09.1992 for offence punishable under sections 436 of the Indian Penal Code and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. In order to establish its case, the prosecution examined twelve witnesses. P.W.1 Kahnu Charan Mahanta is the informant and he stated that due to the occurrence, paddy crops and cash of Rs.3,000/-which were kept in the house were destroyed along with some household articles. He proved the first information report (Ext.1). P.W.2 Smt. Jhumpa Dei did not support the prosecution case for which she was declared hostile. P.W.1 Kahnu Charan Mahanta is the informant and he stated that due to the occurrence, paddy crops and cash of Rs.3,000/-which were kept in the house were destroyed along with some household articles. He proved the first information report (Ext.1). P.W.2 Smt. Jhumpa Dei did not support the prosecution case for which she was declared hostile. P.W.3 Thumpu Murmu stated that on the date of occurrence on hearing shout, he came outside the house and went to the house of P.W.1 and saw the petitioner running away towards the forest from the house of P.W.1 and the house of the P.W.1 was half burnt and thereafter the fire was extinguished. P.W.4 Balia Hemram stated that the house of P.W.1 was burnt at about 12.00 noon. P.W.5 Dala Dehuri also stated that the house of P.W.1 was burnt and by the time he arrived at the house of P.W.1, the fire had already been extinguished. P.W.6 Chandra Baski stated to have heard the shout of wife of P.W.1 that the petitioner set fire to her house and he went to the spot and found that the house was burnt. P.W.7 Duryodhana Mohanta is the father of P.W.1 and he stated that on the date of occurrence when he returned from forest, he found his house was burnt and his daughter-in-law told him that the petitioner set fire to the house. P.W.8 Hitai Murmu stated to have heard the wife of P.W.1 shouting that the petitioner set fire to her house and he further stated to have seen the petitioner running away towards the forest. P.W.9 Adaramani Mohanta who is the wife of the informant is an occurrence witness. P.W.10 Bholaram Mallick stated about the seizure of some ashes, some half burnt paddy and half burnt wood from the spot by police and preparation of the seizure list. P.W.11 Bairagi Jena also stated about the seizure of half burnt paddy and half burnt wood as per seizure list Ext.2. P.W.12 Jayakrishna Nayak was the A.S.I. of Police attached to Sarat Police Station who is the Investigating Officer in the case. The prosecution proved two documents. Ext.1 is the F.I.R. and Ext.2 is the seizure list. 5. The defence plea is one of denial and it is pleaded that due to previous dispute between the parties, the case has been foisted. One witness namely, Khetra Mohan Dehury was examined as D.W.1. 6. The prosecution proved two documents. Ext.1 is the F.I.R. and Ext.2 is the seizure list. 5. The defence plea is one of denial and it is pleaded that due to previous dispute between the parties, the case has been foisted. One witness namely, Khetra Mohan Dehury was examined as D.W.1. 6. The learned Trial Court on analysis of the evidence on record came to hold that though there is delay of four days in lodging the first information report at the police station yet the delay has been satisfactorily explained by the prosecution and it has been proved as per the statements of P.W.1, P.W.7 and P.W.9 that the delay occurred as no male member was present in the house on the date of occurrence and P.W.1 returned to his house after four days. The learned Trial Court further held that the statement of P.W.1 that the occurrence took place in the month of March 1992 cannot be a ground to disbelieve the prosecution case that the occurrence in question took place on 15.02.1992. The learned Trial Court further held that the non-production of the seized articles in Court during trial cannot be a ground to hold there was no house burning as on the date of occurrence. The learned Trial Court disbelieved the evidence of D.W.1 and considering the evidence of the post-occurrence witnesses P.W.3 and P.W.8 who saw the petitioner running away from the house of P.W.1 towards the forest at the time of occurrence as well as the evidence of P.W.9, it was held that the prosecution has established beyond all reasonable doubt that the petitioner set fire to the dwelling house of P.W.1 on the date of occurrence intending to cause destruction of the same and the household articles as has been stated by P.W.1 and P.W.9. The learned Appellate Court also held that the delay in lodging the first information report has been satisfactorily explained and considering the evidence of P.W.3, P.W.8 and P.W.9, the learned Appellate Court agreed with the finding of the learned Trial Court and came to hold that the petitioner has been rightly held guilty for committing the mischief by fire in burning the house of P.W.1. 7. Mr. 7. Mr. Akshaya Kumar Nayak, learned counsel appearing for the petitioner contended that due to previous enmity, the petitioner has been falsely entangled in the case and both the courts below have not analyzed the evidence in proper prospective relating to the delay in lodging the first information report and its effect in concocting a case. It is further contended that the solitary evidence of P.W.9 who claimed to be an eye witness to the occurrence is not absolutely reliable and truthful and therefore, the courts below erred in placing implicit reliance on her testimony. It is further contended that there are discrepancies relating to the lodging of the first information report inasmuch as though P.W.1 though stated in the chief examination that on 20.02.1992 he reported the matter in writing at Sarat police station but in the cross examination, he has stated that he presented oral report before the police which was reduced to writing whereas the Investigating Officer has stated that a written report was presented in the police station and he had no knowledge where the F.I.R. was scribed. Learned counsel for the petitioner further contended that the entire thing has been stage managed to collect evidence against the petitioner and therefore, it is a fit a case where benefit of doubt should be extended in favour of the petitioner. Mr. Deepak Kumar Pani, learned Addl. Standing Counsel for the State on the other hand submitted that there are concurrent findings of fact by both the Courts below and the evidence of the solitary eye witness P.W.9 gets corroboration from the other witnesses who have seen the petitioner running away from the spot towards the jungle. Learned counsel further contended that since the informant (P.W.1) was not present in the house and as per the evidence of P.W.7, the informant came four days after the occurrence, it can be said that the delay in lodging the first information report has been satisfactorily explained. Learned counsel further contended that the statements of the witnesses coupled with seizure of burnt articles clearly indicate that there was fire to the house of the informant and since there is no illegality or impropriety in the impugned judgments and order of conviction of both the Courts below, therefore, the revision petition should be dismissed. 8. Learned counsel further contended that the statements of the witnesses coupled with seizure of burnt articles clearly indicate that there was fire to the house of the informant and since there is no illegality or impropriety in the impugned judgments and order of conviction of both the Courts below, therefore, the revision petition should be dismissed. 8. Coming to the first contention relating to the delay in lodging the first information report, there is no dispute that the occurrence in question stated to have taken place on 15.02.1992 at about noon whereas the first information report was lodged on 20.02.1992 at about 7.00 p.m. i.e., five days after the occurrence. The informant (P.W.1) has stated that he was absent on the date of occurrence and on 20.02.1992 he reported the matter in writing at Sarat Police Station. He further stated that there was delay in lodging the first information report since he and his father (P.W.7) were absent in the home. He further stated that the petitioner also threatened his parents against lodging of the first information report. P.W.7, who is the father of P.W.1 has stated that at the time of occurrence he had been to the forest and on his return, he found that his house was burnt and after ascertaining that his son was also absent in the house at the time of occurrence, he sent information to his son and after four days when his son came, the matter was reported at the police station. He further stated that there was delay as he waited for his son for lodging the first information report. From the evidence of P.W.7, it is clear that he was present from the date of occurrence after he returned from forest till the date of lodging of the first information report and therefore, the statement of the informant that there was delay in lodging the F.I.R. as he and his father were absent in the house cannot be accepted. P.W.9 who is the wife of the informant has stated that P.W.1 returned to the house about two days after the occurrence. P.W.9 who is the wife of the informant has stated that P.W.1 returned to the house about two days after the occurrence. This statement contradicts the evidence of P.W.7 that P.W.1 returned after about four days of the occurrence and therefore, the cumulative effect of the evidence of P.Ws.1, 7 and 9 would indicate that the occurrence took place on 15.02.1992 at about noon and on the very day of the occurrence, after P.W.7 returned from the forest, he was available in the house and even the informant (P.W.1) was also available in the house after two days of the occurrence. The finding of the learned Trial Court that delay occurred as no male member was present in the house on the date of occurrence is contrary to the evidence on record. The Investigating Officer (P.W.12) has stated that before lodging of the first information report, he did not receive any information from the village guard regarding the occurrence. This statement of the Investigating Officer coupled with the deliberate delay in lodging the F.I.R. would rather indicate that perhaps till 20.02.1992, nobody was aware as to how the house of the informant caught fire on 15.02.1992. Had that been known to P.W.9, she would have promptly communicated the same before her family members and others and in such an event, the report would have been lodged much earlier before the police station. P.W.7 is silent about any threat given by the petitioner after the occurrence not to report the matter in the police station. Delay in lodging of the first information report by itself would not be sufficient to discard the prosecution version unless it is unexplained and unless such delay is coupled with the likelihood of concoction of evidence. The factum of delay requires the Court to scrutinise the evidence adduced with greater degree of care and caution. In view of the evidence available on record, it cannot be said that the delay in lodging the first information report has been satisfactorily explained by the prosecution. As it appears, there was previous ill-feeling between the petitioner and the informant inasmuch as the informant had married the first daughter of the petitioner and after her death, the informant did not agree to marry the second daughter of the petitioner and married to P.W.9. As it appears, there was previous ill-feeling between the petitioner and the informant inasmuch as the informant had married the first daughter of the petitioner and after her death, the informant did not agree to marry the second daughter of the petitioner and married to P.W.9. Therefore, the possibility of concoction of the case against the petitioner suspecting his involvement in the crime cannot be ruled out. In that view of the matter, the findings of the Courts below that the delay in lodging the first information report has been satisfactorily explained cannot be accepted. 9. Coming to the evidence of the eye witness P.W.9 Smt. Adarmani Mahanta, though in the chief examination, she has stated that she saw the petitioner setting fire to her house by means of a burning wood and went away towards the forest for which she raised shout but in the cross examination, she has stated that when she came from the back side of her house leaving stitching of sal leaves to the front house, she saw the front house was burning and the petitioner was running away from the house from a distance of about 2 to 3 cubits and she saw the petitioner from the back. The statement given by P.W.9 in the cross examination contradicts the statement which she has given in the chief examination that she saw the actual setting her house on fire by the petitioner. The occurrence is stated to have taken place at about noon. The houses of other villagers were situated in the vicinity of the house of the informant. In ordinary course of events, nobody would attempt to set fire to somebody’s house at that point of time and in that surroundings as there would be chance of others seeing him doing such crime and moreover it is also not expected from a person committing such crime of arson to be there at the spot for a longer period just to be seen by others. The timing of the occurrence, the surroundings coupled with the inconsistent statements of P.W.9 makes it very difficult to believe that P.W.9 had actually seen the setting fire of the house by the petitioner. Law is well settled that in order to base conviction on the testimony of a solitary witness, the evidence must be clear, cogent, truthful, reliable and aboveboard. Law is well settled that in order to base conviction on the testimony of a solitary witness, the evidence must be clear, cogent, truthful, reliable and aboveboard. On analyzing the evidence of P.W.9, I find that she does not fall in that category. Therefore, I am of the view that the learned courts below erred in placing reliance on her testimony. Though the other witnesses have stated to have seen the petitioner running away from the spot but that by itself would not be sufficient to hold the petitioner guilty of the charge under section 436 of the Indian Penal Code. The prosecution has proved that there was previous enmity between the parties as the informant did not agree to marry the second daughter of the petitioner but the enmity is a double edged weapon and while it can be basis for commission of the crime, it can also be the basis for false implication. The Investigating Officer has categorically stated that he did not receive any earlier report relating to threat given by the petitioner to set fire the house of the informant and therefore, the evidence of P.W.7 in that respect cannot be accepted. 10. In the light of the above discussions, I am of the considered opinion that the impugned judgment and order of conviction passed by the learned Trial Court which was confirmed by the learned Appellate Court are not sustainable in the eye of law and accordingly, the same are hereby set aside and the petitioner is acquitted of the charge under section 436 of the Indian Penal Code. The petitioner has been released on bail by this Court during pendency of the revision petition. He is discharged from the liability of his bail bonds. His personal bonds and surety bonds stand cancelled. Accordingly, the CRLREV is allowed.