Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 457 (JHR)

Badri Mandal v. State of Jharkhand

2019-02-14

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present appeal has been preferred against the judgment of conviction and the order of sentence dated 17.04.2004 passed by 7th Additional Sessions Judge (F.T.C No.4), Godda in Sessions Case No. 67 of 2003 | 139 of 2003 whereby the appellants have been convicted for the offences under Sections 435/34 IPC, however, instead of sentencing them for the said offences, they have been given benefits of the Probation of Offenders Act, 1958 and each of the convicts has been ordered to be released after filing a probation bond of Rs.5,000/- with one surety of like amount for bearing good conduct and maintaining peace in the society for a term of one year, with the condition that if any of convicts breaches the condition of the bond or any of the conditions, they/he shall remain physically present in the said Court to receive the sentence in accordance with law. 2. The prosecution case in brief, as stated in the written report of one Most. Pobiya submitted to the Officer-in-Charge, Meharma Police Station on 30.11.2002 at 15.30 Hrs., is that the appellants came to her hut while she was cooking food and started abusing her and on protest, they allegedly threw her food, dragged her away from the hut and appellant No.1 Badri Mandal set the hut on fire as a result of which the hut was gutted. 3. The police submitted charge sheet under Sections 452, 323, 436/34, 427 and 504 of IPC against the appellants and cognizance of the said offences was taken. The case was committed to the Court of Session and the charge was framed under Sections 341, 323, 436/34 IPC against the appellants and they were tried. 4. During the course of trial, altogether five witnesses were examined on behalf of the prosecution i.e. P.W.1 (Santosh Mandal), P.W.2 (Kirani Ravidas), P.W.3 (Mangal Mandal), P.W.4 (Most. Pobia) and P.W.5 (Jitendra Kumar). 5. Defence has also examined one witness in support of its case as D.W.1 (Sakuni Poddar). 6. The learned Trial Court having taken into consideration the materials and evidences available on record, convicted the appellants under Sections 435/34 IPC and they were directed to be released giving them benefits of the Probation of Offenders Act on the terms and conditions as described hereinabove. 7. 6. The learned Trial Court having taken into consideration the materials and evidences available on record, convicted the appellants under Sections 435/34 IPC and they were directed to be released giving them benefits of the Probation of Offenders Act on the terms and conditions as described hereinabove. 7. The learned Amicus Curiae for the appellants submits that the land in question is the ancestral property of the appellants which was illegally occupied by the informant and her family members and only to harass the appellants, she herself set the hut on fire and falsely implicated them in the present case. The prosecution has failed to prove the case beyond the shadow of all reasonable doubts and the learned Trial Court has convicted the appellants in a most mechanical way. There are vital contradictions between the statements of the prosecution witnesses and the contents of the FIR. Though the FIR was lodged on 30.11.2002 at 15.30 Hrs. and the seizure list was prepared on the very same day at 17 Hrs., yet all the prosecution witnesses have specifically stated that the alleged occurrence took place in between 5-6 P.M on the said date which shows that the seizure list was manufactured and the FIR was lodged with a concocted story. The date and time of the alleged occurrence has not been mentioned in the written report of the informant which creates serious doubt on the entire prosecution case. The informant (P.W.4) has categorically stated in paragraph 3 of her deposition that after the alleged occurrence, she went to the concerned police station where her statement was recorded by the officer-in-charge and read over to her upon which she put her LTI, whereas the I.O has admitted in paragraph 1 of his deposition that he received the written report of the informant which is contrary to each other falsifying the initiation of the prosecution itself. It also indicates that the FIR or the original statement of the informant has knowingly been suppressed by the prosecution as it was not helping the prosecution. All the prosecution witnesses have categorically stated that due to fire, the food grains, cot, bed etc. got burnt whereas on perusal of the seizure list, it transpires that only half burnt palm pole, one half burnt bamboo pole and some straw ashes were seized. All the prosecution witnesses have categorically stated that due to fire, the food grains, cot, bed etc. got burnt whereas on perusal of the seizure list, it transpires that only half burnt palm pole, one half burnt bamboo pole and some straw ashes were seized. Neither the food grains nor any burnt household utensils or burnt cot/bed was seized which casts doubt on the entire prosecution story. It is further submitted that the informant has miserably failed to show any genuine document with regard to the land in question whereas the appellants have successfully proved that the land in question is their ancestral property. The informant has illegally occupied the same and only to harass the appellants, she lodged the instant F.I.R and falsely implicated the appellants in the present case. 8. Per-contra, the learned A.P.P submits that the prosecution witnesses are consistent to the factum of the alleged occurrence and the motive for such occurrence has also been sufficiently proved in the present case. It is further submitted that though there are some infirmities in the evidence of the prosecution witnesses, yet the same cannot by itself be sufficient to absolve the appellants, if the other evidences are sufficient to bring home the charges against them. The investigating officer has also proved the factum of the evidence and as such the learned Court below has rightly passed the impugned judgment of conviction and the order of sentence against the appellants. 9. Heard the learned counsel for the parties and perused the L.C.R to appreciate the rival contentions of the learned counsel for the parties. 10. P.W.1 is the nephew of the informant, who has claimed to be an eye-witness to the alleged occurrence. He has deposed that on the day of the alleged occurrence, when he was returning from the ‘Haat’, he saw that the appellants were abusing the informant at her house. They also assaulted the informant and dragged her out of her house and appellant Badri Mandal set the house on fire due to which the food grains, utensils and bed got burnt. 11. P.W.2 has deposed that at about 5 P.M, when he was returning from ‘Bhagaiya Haat’, he saw that the appellants were abusing the informant. They also assaulted the informant and dragged her out of her house and appellant Badri Mandal set the house on fire due to which the food grains, utensils and bed got burnt. 11. P.W.2 has deposed that at about 5 P.M, when he was returning from ‘Bhagaiya Haat’, he saw that the appellants were abusing the informant. He went there and tried to pacify them, however, when they did not listen to him, he went to his house and after 10-15 minutes, they set the house of the informant on fire. 12. P.W. 3 is the son of the informant. He is a hearsay witness of the alleged occurrence. 13. P.W.4 (Most. Pobiya), who is the informant herself, has stated in her examination-in-chief that on the day of the alleged occurrence at 6 P.M, while she was cooking food in her house, the appellants came there, assaulted her and threw her utensils out of the house and appellant Badri Mandal sprinkled kerosene oil over her hut and set the same on fire by match box due to which her household articles i.e. clothes, bed, cot, food grains like rice etc. got burnt. She also proved ‘Kurfanama’ with respect to the land in question which has been marked as Ext.4 with objection as it was 30 years old document. 14. P.W.5 is the investigating officer of the case. He has deposed that he had investigated the place of occurrence and found clay oven, burnt ‘Dari’ at the place of occurrence. He prepared the seizure list which was signed by two independent witnesses. However, the seizure list shows that only half burnt palm pole, bamboo pole and burnt straw ashes were seized from the place of occurrence. Neither any food grain nor any burnt ‘Dari’ was seized from the place of occurrence. 15. Thus, the statements of the prosecution witnesses appear to be consistent to the extent that the appellants burnt the hut of the informant and the factum of burning the hut is also supported by the investigating officer. There is sufficient evidence that there was dispute between the informant and the appellants for the land over which the hut was constructed showing sufficient motive for committing the alleged offence. There is sufficient evidence that there was dispute between the informant and the appellants for the land over which the hut was constructed showing sufficient motive for committing the alleged offence. So far as the claim of burning of the household articles of the informant is concerned, though there is some contradiction in the version of the informant and the seizure list, yet that by itself cannot be a ground to absolve the appellants from the charges under Section 436 IPC. The independent witness i.e. P.W.2 was also an eye-witness to the alleged occurrence to the extent that the appellants were abusing the informant. 16. Under the aforesaid facts and circumstances, the present appeal is dismissed. The stay granted vide order dated 03.08.2004 with regard to execution of bail-bond by the appellants in terms with the order dated 17.04.2004 passed by the learned Trial Court stands vacated. The appellants are directed to comply the order of sentence dated 17.04.2004 passed by the learned Trial Court in Sessions Case No. 67/2003 | 139/2003. 17. The Court appreciates the efforts of Mr. Ashutosh Prasad Joshi (Amicus Curiae) in arguing the present appeal on behalf of the appellants.