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2021 DIGILAW 1394 (ALL)

Sonpal v. State of U. P.

2021-11-24

VIKAS KUNVAR SRIVASTAV

body2021
JUDGMENT : 1. The case is called out. 2. The present criminal appeal is preferred on behalf of the accused-appellant-Sonpal under Section 14A(2) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 against the order dated 12.8.2021 passed by learned Special Judge, S.C./S.T. (P.A.) Act, District Hardoi, in Bail Application No.1933/2021 arisen out of Case Crime No.85/2019 under Sections 302, 436, 323, 324, 504 of I.P.C. and Section 3(1)(r), 3(2)(V) of S.C./S.T. Act, Police Station- Lonar, District-Hardoi. 3. The complainant of the case Kallu has been served with notice of appeal but neither he nor anyone representing him is present before the court. Learned A.G.A. opted to argue the case on the basis of instructions received to him, however, he could not filed counter affidavit. However, in connected Criminal Appeal No.1299 of 2021 counter affidavit filed, is taken reliance by him. 4. The appeal is moved on the ground that the impugned order dated 12.8.2021 is illegally passed without perusing and considering the documentary evidences available on record. Learned court below failed to consider the statement of private respondent no.2 (complainant of the case) which was not recorded a the time of inquest, even he was present there. It was also not considered by the court below that the present accused appellant has falsely been implicated on the instigation of villagers otherwise he has no role in the commission of offence, there is no eye witness of the incident. Lastly, it is submitted that the appellant is in jail since 25.8.2019, though he is not in a position to misuse the liberty of bail, if granted by the court. 5. Learned A.G.A. on behalf of the State has stated that the prosecution case is based on the First Information Report lodged on the basis of complaint of the incident by the private respondent no.2. After lodging the First Information Report, the case was duly investigated during which the statement of complainant, his wife and other witnesses were recorded under Section 161 Cr.P.C., the site map of the spot of incident, all are made annexures to the counter affidavit. The post-mortem report of the deceased victim Radha, a minor daughter of the complainant and medico legal examination report of the injuries sustained by the complainant's wife in the course of incident are made annexure no.3 to the petition. The post-mortem report of the deceased victim Radha, a minor daughter of the complainant and medico legal examination report of the injuries sustained by the complainant's wife in the course of incident are made annexure no.3 to the petition. On the basis of evidences collected, the offence was prima facie established under Section Sections 302, 436, 323, 324, 504 of I.P.C. and Section 3(1)(r), 3(2)(v) of S.C./S.T. Act, whereupon the charge-sheet was submitted in the court on 10.4.2019, however, any criminal antecedent on the part of the present accused-appellant is not asserted in the counter affidavit and apprehension is raised as to the tampering of evidences and influencing adversely the witnesses, in case he is released on bail. The offences arraigned against the accused-appellant is graver and punishment in case of conviction is severe, possibility of the accused appellant fleeing away from the process of the court is also not ruled out. 6. Apart of challenging the truthness of version of First Information Report as to the involvement of the present accused-appellant in the offence, learned counsel has put the vehemence upon the statement of PW-1, complainant and PW-2-complainant's wife recorded in the trial court, wherein they turned hostile to the prosecution case. Learned counsel for the appellant further submitted on the basis of the aforesaid statements that no prosecution case is made out at this stage, therefore, the accused appellant deserves to be released on bail without any further discussion. 7. Learned A.G.A. for the State opposed the prayer and the arguments as to the reliance on the statement of witnesses PW-1 and PW-2 who turned hostile before the trial court against the prosecution case. Learned A.G.A. submits that the case for bail is to be judged in the light of evidences collected by the Investigating Officer on the basis whereof prima facie the offence is to have been committed by the accused/appellant is established. 8. Without going with the other arguments with regard to the facts and material arisen in the course of trial and confining in the precincts of bail prayer made against the First Information Report, the Investigation and charge sheet submitted by the Investigating Officer to examine the role, if any, assigned to the present accused-appellant in the commission of offence, for the purpose of grant or rejection of bail prayer. 9. 9. The First Information Report is lodged by the complainant, Kallu who belongs to scheduled caste that a land measuring three biswa was leased about 7 years ago to him for the purpose of residence, the said leased property on the spot is somehow more than area under the lease hold i.e., three biswa. Sonpal, Parmeshwar, Ramdas and Amit, the accused persons belong to the upper caste and were unhappy and annoyed with regard to the aforesaid lease hold property. They assembled on 16.3.2019 at about 7:00 p.m. came to the house of complainant began to abuse, when they were protested, they started beating the complainant and his wife. The present accused-appellant Sonpal with co-accused Parmeshwar and Ramdas set into fires the hut of the complainant, wherein the daughter of the complainant Radha aged about seven years was sleeping and she died of burn. On the basis of aforesaid, the complaint made on 16.3.2019, police started investigation after lodging the First Information Report and instituting a case under Sections 302, 436, 323, 324, 504 of I.P.C. and Section 3(1)(r), 3(2)(v) of S.C./S.T. Act. The inquest was done wherein the witnesses of the inquest proceeding witnessed the dead body of the seven years daughter of the complainant and opined that she had died of burn, thereafter the body was sent to the post-mortem house. Post mortem was done on 17.3.2019 by doctors at about 2:00 p.m. and reported the anti mortem injuries, which are quoted hereunder:- Anti Mortem Injuries "Deep burn present on all over body. Bone charred & exposed of at places. Skin is blacken & peeled of at places. Soot particles present in trachea. Larynx oesophagus & buccal cavity singing of all hairs due to anti mortem burn injuries." 10. In view of the above three documents which are made annexures to the appeal and also find place in the counter affidavit, therefore, admittedly, the First Information Report dated 16.3.2019 was lodged promptly at 7:30 p.m. just after the incident occurred on 7:00 p.m. The inquest was also done on the same day in the night and dead body was sent to the postmortem, which was done with the promptness. As such, all these documents are sufficient to show the death of a minor girl child, Radha, aged about seven years (daughter of the complainant) from burn injuries as the appellant with other co-accused set into fires the hutment of the complainant wherein the victim child was sleeping. The next thing to be seen that whether or not the present accused-appellant has played role in commission of crime, the role of the present accused appellant is stated to have set into fires the hutment of the complainant which he knew very well to be in use of complainant as dwelling house. 11. It is stated in the First Information Report that the accused-appellant is also native villager of the same village where the complainant resides, as such, the accused appellant being in knowledge that the complainant belongs to scheduled caste and a downtrodden people committed mischief by fire. The offence committed by the accused is grave and heinous in nature. Section 436 of the Indian Penal Code, 1860 is quoted hereunder:- "436. Mischief by fire or explosive substance with intent to destroy house, etc.—Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 12. Looking into the nature and consequence of the offence, the gravity of punishment with a view to avoid the same, there is every possibility of the accused appellant to flee away from the process of the court. 13. The prosecution thus from the evidences collected in the course of investigation and submission with charge sheet has been successful in establishing it's prima facie case against the accused appellant for action. 14. So far as the thrust given by the learned counsel for the accused appellant on the statement of witnesses PW-1 and 2 namely the complainant and his wife respectively in the course of trial for the reason they turned hostile and did not support the prosecution case, it cannot be considered for the purpose of granting bail. 14. So far as the thrust given by the learned counsel for the accused appellant on the statement of witnesses PW-1 and 2 namely the complainant and his wife respectively in the course of trial for the reason they turned hostile and did not support the prosecution case, it cannot be considered for the purpose of granting bail. The evidence of hostile witnesses are to be taken as a whole and the trial court is to look into with the entirety of the fact which deposed by such witnesses which part of the prosecution case is corroborated, the same is to be read for prosecution and which part is corroborated by other evidences oriented in favour of the evidences, the same shall be read in favour of the defence. 15. Hon'ble Supreme Court in the case of Rohtash Kumar Vs. Sate of Haryana reported in (2013) 14 SCC 290 in its para-19 and 20 has held as under:- "19. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof. 20. In State of U.P. Vs. Ramesh Prasad Misra & Anr. AIR 1996 SC 2766 , this court held, "that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence, may be relied upon." Thereafter, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution and is found to be reliable in careful judicial scrutiny." 16. The duty to scrutinize, examine and evaluate the statement/oral evidence of the hostile witnesses lies with the trial court and it will be very premature and if in the hurry any finding placing reliance thereon is recorded the wisdom of learned trial judge would be interfered and affected either in favour of the prosecution or in defence. Therefore, the statement of hostile witnesses is not to be considered at this stage of hearing on bail prayer, either for or against the prosecution case. 17. The First Information Report and statement recorded by the Investigating Officer unequivocally assign the role of the accused-appellant, Sonpal in commission of crime by setting into fire the residential hutment of the complainant consequent whereupon a girl child, daughter of the complainant aged bout seven years burnt and charred in fire and died of the burnt injuries instantly. The offence aforesaid was committed by accused appellant with co-accused jointly but none of them apprehended or forbidden anyone of them from this misdoing, the offence of mischief of fire in itself a grave offence and its heinousness increased by reason of death of the girl child sleeping in the hutment from burn injuries. 18. In view of the above discussions, looking into the temperament, daring attitude as to a family belonging to downtrodden society of schedule caste, there would be a strong possibility of adversely affecting the prosecution witnesses of the incident in case of his released on bail. 19. Moreover, the accused-appellant from the nature of offence committed by him with a view to avoid possible result of the trial may linger the same by fleeing away from its process and making them absent in the course of trial, therefore, his release on bail would not be justified and proper. 20. Considering the record and submissions advanced by learned counsel for parties, without commenting upon merits of the case, the appeal is liable to be dismissed. 21. Accordingly, the present appeal is dismissed and the impugned order dated 12.8.2021 passed by learned Special Judge, S.C./S.T. (P.A.) Act, District Hardoi rejecting the bail prayer in Case Crime No.85/2019 under Sections 302, 436, 323, 324, 504 of I.P.C. and Section 3(1)(r), 3(2)(V) of S.C./S.T. Act, Police Station- Lonar, District- Hardoi is affirmed. 21. Accordingly, the present appeal is dismissed and the impugned order dated 12.8.2021 passed by learned Special Judge, S.C./S.T. (P.A.) Act, District Hardoi rejecting the bail prayer in Case Crime No.85/2019 under Sections 302, 436, 323, 324, 504 of I.P.C. and Section 3(1)(r), 3(2)(V) of S.C./S.T. Act, Police Station- Lonar, District- Hardoi is affirmed. Since the matter pertains to the trial of offence falling under the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 for the commission of offence against the complainant belonging to the schedule caste community, the trial court where the case is pending is a special court constituted under Section 14 of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, therefore, it is expected that after submission of chargesheet before the court by the Investigating Officer, the trial should run and concluded within two months. It is directed that trial judge shall run and decide the case expeditiously without influencing from any of the observation made with regard to the order of release on bail.