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2018 DIGILAW 4 (PAT)

Suresh Pal v. State of Bihar

2018-01-02

VINOD KUMAR SINHA

body2018
JUDGMENT : The appellants stand convicted under Sections 436/34 of the Indian Penal Code by 6th Additional Sessions Judge, Aurangabad, in Sessions Trial No. 183 of 1993/37 of 2001 by judgment dated 17.9.2002 and sentenced to undergo rigorous imprisonment for ten years as well as fine of Rs.1,000/- each and in default they were also sentenced to undergo Simple Imprisonment for one month by order dated 19.9.2002. 2. Prosecution case, in short, is that in the night of 10/11.4.1991 at about 1 A.M. the informant, Jagdish Prasad (P.W.6) heard some murmuring and went outside the house and saw the accused appellants fleeing from the place of occurrence and his house was set on fire causing damage to the rice, flour and other articles kept in the house. Further case is that, at that time he was sleeping in the house along with his father Doman Sao (P.W.8) and he claims that on hulla being raised by him, co-villagers, namely, Basudeo Prasad, Krishna Sao, Deonandan, etc. reached there and saw the accused persons fleeing from the place of occurrence. On the basis of fardbeyan Jamhore P.S. Case No. 31 of 1991 was registered. 3. Police after investigation submitted charge sheet against the appellants and the case was committed to the court of sessions. 4. During trial altogether nine witnesses have been examined on behalf of the prosecution, they are Krishna Sao (P.W.1), Jag Narain Singh (P.W.2), Raghubansh Prasad (P.W.3), Deonandan Singh (P.W.4), Monarik Yadav (P.W.5), Jagdish Prasad, informant (P.W.6), Basudeo Prasad (P.W.7), Doman Sao, father of informant (P.W.8) and Upendra Singh (P.W.9). 5. Apart from the oral evidence, some documents have been brought on the record, they are Ext.1, signature of the informant on fardbeyan, Ext.2, the fardbeyan, Ext.3, pages 1 to 18 of case diary and Ext.4, formal FIR. 6. On perusal of the record it appears that neither the Investigating Officer has been examined in this case nor the seizure list has been brought on the record. 7. Defence has not adduced any oral or documentary evidence in support of their case and the statement under Section 313 Cr.P.C. of the appellants is simply denial of the occurrence and false implication due to land dispute. 8. 7. Defence has not adduced any oral or documentary evidence in support of their case and the statement under Section 313 Cr.P.C. of the appellants is simply denial of the occurrence and false implication due to land dispute. 8. The trial court after conclusion of trial convicted the appellants under Sections 436/34 of the IPC and sentenced them as stated above mainly relying on the evidence of P.W.6, the informant and other witnesses, who have supported the evidence of the informant and stated that they have seen the accused persons fleeing from the place of occurrence. 9. Learned counsel for the appellants has assailed the judgment on the ground that the evidence of P.W.6, who is informant, is contradictory to his earlier statement made before the police as in fardbeyan, he has not stated as to who set the house on fire and only stated that he had seen them fleeing from the place of occurrence and evidence of other witnesses also did not disclose, as to who set the house on fire. Further submission is that there was no source of identification and the other witnesses have stated that they have come after ten minutes of the occurrence and, as such, their claim that they have identified the accused appellants fleeing from the place of occurrence is absolutely not true. Further submission is that evidence has come that the house has been taken by the informant from the Jamindar in the name of Ram Krishna Sao but said Ram Krishna Sao has not been examined or any other witness has not been examined to show that the house belongs to the informant. Further submission is that though appellants have been convicted under Section 436 IPC considering the house which has been set on fire as dwelling house and rice, flour, etc. were burnt in the fire but there is absolutely nothing on record in support of the said contention, as neither I.O. has been examined nor seizure list was produced in the court. Further submission is that there are contradictions in the evidence of the witnesses from their earlier statement before police as to the articles which have been burnt and, in such a situation, non-examination of the I.O. of the case creates a serious doubt about the prosecution case. Further submission is that there are contradictions in the evidence of the witnesses from their earlier statement before police as to the articles which have been burnt and, in such a situation, non-examination of the I.O. of the case creates a serious doubt about the prosecution case. Learned counsel further submits that the conviction of the appellants under Section 436 IPC is not sustainable in the eye of law. 10. Learned counsel for the State, on the other hand, has submitted that the house has been set on fire and several articles kept in the house were burnt due to fire and the evidence shows that the house was a dwelling house in which the informant and his father were sleeping and, as such, there is no infirmity in the conviction of the appellants under Section 436 IPC. 11. On close scrutiny of the evidence of P.W.6, the informant, it appears that he has stated in his evidence in court that accused Suresh Pal took out match box and set his house on fire and in the light of fire he has identified Suresh Pal and Naresh Pal. However, there is no such statement of the informant in his fardbeyan recorded before police, whereas it only discloses that he had seen them fleeing from the place of occurrence in the light of fire. It further appears from the evidence of informant that rice, flour, clothes, etc. kept in the house were burnt in that fire. His evidence in paragraph-5 further shows that he has taken the land on which the house was constructed on the Bandobasti from the Malik in the name of Ram Krishna Sao. His evidence in paragraph-10 further shows that he was sleeping along with his father in the said house. A suggestion has also been given to the witness that the house is not a residential house and there is rasta of the appellants in the said land, through which they were passing. P.W.8 is the father of the informant, who claims that at the time of occurrence, he had seen the accused appellants Suresh and Naresh fleeing from the place of occurrence and four cots, one “dekhi”, doors and other articles were burnt in that fire. P.W.8 is the father of the informant, who claims that at the time of occurrence, he had seen the accused appellants Suresh and Naresh fleeing from the place of occurrence and four cots, one “dekhi”, doors and other articles were burnt in that fire. P.W.7 also claims to be the eye-witness to the occurrence but his evidence shows that on hulla he reached there and saw appellant Suresh fleeing from the place of occurrence and he has not stated that grains, wooden articles and other articles were burnt in the fire. This witness has admitted in his cross examination that the land on which the house was constructed belongs to Ram Krishna Sao. Contradiction has also been taken from the earlier statement before police, to which he has stated that he had seen the accused persons fleeing from the place of occurrence and grains and other articles kept in the house were burnt in that fire. Similarly, P.W.1 Krishna Sao had also supported the prosecution case and stated that when he reached there, he saw the accused persons fleeing from the place of occurrence and the informant (P.W.6) disclosed about the house being set on fire by the accused appellants and he has stated in his evidence that 3 to 4 cots and other articles were burnt. However, this witness has stated in his evidence that in the said house mother of the informant and other family members were living. He has also stated in paragraph-20 of the evidence that the land was gair majarua land and the informant has taken the same on “Bando Basti” from the “Malik”. His statement also shows that the accused persons have taken land beside the place of occurrence. Apart from that, P.W.2, Raghubansh Prasad, has been declared hostile as he has not supported the prosecution case and P.W.3 has been tendered for cross examination and there is nothing relevant in his cross examination. P.W.5, Monarik Yadav, has also been declared hostile by the prosecution as he has not supported the prosecution case and P.W.4, Deonandan Singh, is also a hearsay witness and he has stated that the informant disclosed that the appellants have set the house on fire. 12. P.W.5, Monarik Yadav, has also been declared hostile by the prosecution as he has not supported the prosecution case and P.W.4, Deonandan Singh, is also a hearsay witness and he has stated that the informant disclosed that the appellants have set the house on fire. 12. Considering the entire evidence, as discussed above, it appears that except P.W.6, the informant, who claims to be the eyewitness to the occurrence and seen the appellant Suresh Pal, setting the house on fire by lighting match box, there is no other witness on the point of setting the house on fire, rather the other witnesses, i.e., P.Ws. 1, 4, 7 and 8 disclosed that they had seen the accused appellants fleeing from the place of occurrence. Even the evidence of P.W.6 on that point is contradictory to his earliest version made in the FIR as the FIR shows that he had seen the accused appellants fleeing in the light of fire. The evidence of P.W.6 in paragraph-8 also disclosed that after 10 to 15 minutes the people from adjoining areas came there, including Basudeo Prasad (P.W.7), Raghubansh Prasad (P.W.3), Krishna Sao (P.W.1), Deonandan Singh (P.W.4) and similarly the evidence of P.W.8 in paragraph-9 also disclosed that after half an hour of the occurrence P.Ws. 1, 7 & 4 and others reached there. Even P.W.8 had stated in his cross examination that he had seen the accused persons fleeing from the back. Evidence of P.W.8 in paragraph-7 further disclosed that the north of the place of occurrence there was house of appellant Suresh Pal. His evidence further shows in paragraph-8 that when there was high flame of the fire we woke up. If the aforesaid evidence of P.Ws. 6 and 8 is to be believed, the claim of other witnesses, i.e., P.Ws 1, 4 and 7 that they had seen the accused persons fleeing appears to be doubtful as the evidence of P.Ws.6 and 8 shows that other witnesses came to the place of occurrence after 10- 15 minutes and 30 minutes and the house of the accused persons is just north of the place of occurrence and it seems to be ridiculous that appellants shall remain present there for 10 minutes for getting them identified. Evidence of P.W.6 in paragraph-9 also shows that they had dispute with the accused persons from before and the evidence of P.W.8 also disclosed that the accused persons have purchased the land north to the place of occurrence and the place of occurrence is a gair majarua land which he claims on the basis of “Bando Basti” but no paper has been produced in support of contention. On perusal of the evidence it appears that there was dispute between the accused appellants and informant and others and a suggestion has also been given that due to that they have falsely been implicated. There evidence also disclosed that appellant Suresh Pal is the adjoining neighbour from the place of occurrence and in such a situation the claim of P.W.6 that he had seen them fleeing does not appear to be probable, specially in the dead of night. It appears that to probablise the prosecution story the prosecution made an improvement in FIR and P.W.6 has stated that he had seen Suresh Pal setting the house on fire. Usually when a person sets fire it does not appear that he remains present there as he sets fire and immediately run away so that he may not be caught or recognized. The evidence of P.W.8 also disclosed that when the house was setting a blaze and high flames started coming out he woke up and found them fleeing and identified the appellants in the illumination produced by burning of fire, which does not appear probable as the house of the appellant is just beside the place of occurrence. On the above background it does not look probable for the witnesses to recognize them in illumination of produce of burning of the house and improvement in the evidence of P.W.6 appears to be deliberate for the purpose of securing conviction of the appellants. 13. Apart from the above facts stated above, it has come in the evidence that the appellant has two houses, one inside the village and another at the gair majarua land on which he was in possession on the basis of “Bando Basti” and the evidence of P.Ws. 6 and 8 disclosed that they were sleeping in the house but the evidence of P.W.1 disclosed that mother of P.W.6 along with children was living in the house. 6 and 8 disclosed that they were sleeping in the house but the evidence of P.W.1 disclosed that mother of P.W.6 along with children was living in the house. P.W.1 has stated that due to fire 3-4 cots, carpets, altogether articles worth Rs.2000/- were burnt. However, his attention has been drawn towards the previous statement made before the police in his cross examination in paragraph-2 where he has stated that he could not recollect as to whether mother of P.W.6 was living in that house or not and he has further stated that he told the Darogaji about the articles kept in the house. Further he has denied in paragraph-3 of his cross examination that he has stated before the Darogaji that none was living in that house. Similarly, P.W.6 has stated that rice, flour and other articles were burnt. The evidence was also disclosed that burning cot was seized by the police and his signature was obtained but seizure list has not been brought on the record. P.W.7 has also stated cots, grains, doors and door planks were burnt. However, his attention has been drawn towards his earlier statement made before the police where he has stated that due to fire cots, doors and door planks were burnt. He has stated in paragraph-9 of his evidence that he has stated before police that none was living in the said house. P.W.8 has stated that cots, doors, etc. were burnt but his attention has been drawn towards his earlier statement made before the police that he has stated before police that cots, doors and door planks were burnt and in such a situation non-examination of I.O. and .non-production of seizure list cast serious prejudice to the defence and make the prosecution story vulnerable. 14. Learned trial court has not considered the aforesaid discrepancies and inconsistencies in prosecution evidence which make the identification of the accused persons while fleeing away doubtful and non-examination of the I.O. has certainly caused serious prejudice to the defence and in such a situation non-production of seizure list in support of the prosecution case has made a serious doubt in the prosecution version. 15. Considering the aforesaid discrepancies and inconsistencies, it appears that prosecution has not been able to establish the case under Section 436 IPC against the appellants beyond all reasonable doubts, rather the identification itself appears to be not free from suspicion. 15. Considering the aforesaid discrepancies and inconsistencies, it appears that prosecution has not been able to establish the case under Section 436 IPC against the appellants beyond all reasonable doubts, rather the identification itself appears to be not free from suspicion. Hence, the appellants are entitled to the benefit of doubt. 16. Accordingly, the appeal is allowed. The impugned judgment of conviction and the order of sentence are set aside. As the appellants are on bail, they are directed to be discharged from the liabilities of their bail bonds.