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2022 DIGILAW 822 (JHR)

Bijay Singh Banra v. State of Jharkhand

2022-07-08

NAVNEET KUMAR

body2022
JUDGMENT : 1. This appeal is directed against the judgment of conviction dated 29.04.2005 and order of sentence dated 30.04.2005 passed by the learned Sessions Judge, West Singhbhum, Chaibasa in Sessions Trial No. 244 of 2001 corresponding to G.R. Case No. 156 of 2000, arising out of Muffasil P.S. Case No. 35 of 2000, West Singhbhum, Chaibasa whereby and whereunder the appellant has been convicted under sections 448/427, 436 of IPC and sentenced to undergo R.I. for 7 years for the offence punishable u/s 436 of IPC and RI for six months u/s 448 of IPC. Learned trial court has also imposed sentence of fine upon the appellant to pay a sum of Rs.7,000/- (Rupees Seven Thousand Only) and in default of payment of fine he was directed to go undergo further imprisonment for a period of six months. It has further been ordered by Learned Trial court that out of a fine a sum of Rs.5000/- (Rupees Five Thousand Only) shall be paid to the informant Bhani Tanti by way of compensation for the damage to her properties consequent loss suffered by her. The learned trial court did not impose sentence for the offence punishable under section 427 of the IPC. 2. The prosecution case was arose on the basis of written report of Mosomat Bhani Tanti lodged at the Muffasil Police station on 20.05.2000, according to the written report the case of the prosecution was that the informant was a widow and used to earn her livelihood by selling vegetables. On 19.05.2000 at about 3.00 pm while she was sitting in the company of her next door neighbour Laxmi Devi, the accused Bijay Singh Banra came to her house and entered into her house after breaking/ open the door. He damaged the utensils, boxes, clothes and food items kept inside the house and began to throw the articles out of the house. He thereafter set fire to the door of her house and to the clothes along with the box in which the clothes were kept and also took away Rs.4000/- besides two vessels which was kept in the box. 3. On the basis of written report of informant Muffasil P.S. Case No. 35/2000 has been registered under sections 448, 436, 380, 427 of IPC. 3. On the basis of written report of informant Muffasil P.S. Case No. 35/2000 has been registered under sections 448, 436, 380, 427 of IPC. After investigation police submitted the charge sheet vide charge sheet No. 36/2000 on 31.05.2000 under sections 448, 436, 380, 427 of IPC and under sections 4, 5 and 6 of Prevention of Witch (DAAIN) Practice Act. After taking cognizance the case was committed to the court of Sessions. On 23rd September 2002 learned Sessions Judge, Singhbhum West framed the charge under sections 448, 436, 380, 427 of IPC and under sections 4, 5 and 6 of Prevention of Witch (DAAIN) Practice Act. The learned trial court after conducting the trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 4. Heard Mr. P.K. Sahay, learned counsel appearing on behalf of the appellant assisted by Mr. Jitendra Nath Upadhyay and Mrs. Nehala Sharmin, learned A.P.P. appearing on behalf of the State. Arguments on behalf of the learned Counsel for the appellant 5. It is submitted on behalf of the appellant that the learned trial court has committed error in the appreciation of the evidences and the impugned judgment of conviction and order of sentence is bad in law as well as on fact. In view of the fact that there is only one eye witness in this case who is the informant and there are inconsistencies in her statement also. It has further been pointed out that one FIR named witness Laxmi Devi examined on behalf of the prosecution has been declared hostile and she has not supported the case of the prosecution. Further, it has also been contended that the prosecution has failed to prove the motive of the appellant in connection with the alleged offence. Further, the learned trial court has also failed to appreciate the evidence which has been produced to substantiate the case of the prosecution because no material has been brought on record. Further, it has also been pointed out that no fire means like match box etc. was found from the place of occurrence, therefore, the allegation of causing fire is not fully corroborated by the prosecution and, therefore, it’s urged on behalf of the appellant that the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. was found from the place of occurrence, therefore, the allegation of causing fire is not fully corroborated by the prosecution and, therefore, it’s urged on behalf of the appellant that the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the learned A.P.P. for the State 6. On the other hand, the learned A.P.P. for the State has vehemently opposed the contentions raised on behalf of the appellant and submitted that the learned trial court has rightly relied upon the evidence of P.W. 1, informant P.W. 2 and hostile witness P.W. 3 by which it appears that the case of the prosecution is substantiated and, therefore, there is no legal evidence by which interference of this Court is warranted in the impugned judgment of conviction and order of sentence and, therefore this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 7. Having heard the parties perused the materials available on record including the Lower Court Record. 8. It is found that the sole appellant was charged that he had entered in the house of the informant P.W. 2 Bhani Tanti unlawfully and set the house on fire by which her house and house hold articles and clothes were damaged due to fire and thereby the properties of the victim P.W. 2 were destroyed. 9. In order to substantiate the case of the prosecution as many as 8 witnesses have been examined which are as under : 1. P.W. 1 Mukund Banra Munda, 2. P.W. 2 Bhani tanti, (Informant) 3. P.W. 3 Laxmi Tanti 4. P.W. 4 Gangadhar Das 5. P.W. 5 Chandradip Singh 6. P.W. 6 Raj Kumar Das 7. P.W. 7 Basant Kumar Das and 8. P.W. 8 Rajan Das. 10. In addition to oral evidences the prosecution has adduced certain documents in the evidence which are as under : 1. Signature of witness Mukund Banra Munda on Seizure List (Ext. 1) 2. FIR (Ext. 2) 3. Seizure List (Ext. 3) 11. P.W. 6 Raj Kumar Das 7. P.W. 7 Basant Kumar Das and 8. P.W. 8 Rajan Das. 10. In addition to oral evidences the prosecution has adduced certain documents in the evidence which are as under : 1. Signature of witness Mukund Banra Munda on Seizure List (Ext. 1) 2. FIR (Ext. 2) 3. Seizure List (Ext. 3) 11. P.W. 1 Mukund Banra Munda is the seizure list witnesses of the burnt articles from the house of the Bhani Tanti and he deposed that on the date of occurrence the police had visited her (P.W.2 - informant Bhani Tanti) house in the village and collected the burned ashes and melted aluminum lid from the house of the P.W.2 Bhani Tanti and had prepared the seizure list on which he and one Jeet Nath Tanti had appended their respective signatures and he had identified his signature on the seizure list which is marked as Ext. 1 and thus this witness has supported the case of the prosecution to the extent that the police had collected burned remnants from the house of informant P.W. 2 Bhani Tanti. 12. From the deposition of P.W. 2 Bhani Tanti (informant) it appears that she stated that on the date of occurrence while she was sitting with Laxmi Devi (P.W. 3) the accused appellant Bijay Singh Banra had entered into the her house and started throwing and damaging the house hold articles on the floor and thereafter set them on fire including the door of the house. She further stated that the information was given to the police on the next date and the police officer had visited her house and inspected the belongings put on fire by the appellant. Nothing has been found from her deposition to disbelieve the prosecution case as emanating from her version and thus this witness P.W. 2 Bhani Tanti categorically stated that the appellant having entered into her house had set on fire her belongings in the house and thus the charges of causing mischief by fire by entering into the house of this witness is fully corroborated without any discrepancies and flaws. 13. P.W. 3 Laxmi Tanti is the FIR named witnesses and she has been declared hostile. 13. P.W. 3 Laxmi Tanti is the FIR named witnesses and she has been declared hostile. Nevertheless from her version in examination-in chief it is found that the police had visited the burnt house of the informant P.W. 2 Bhani Tanti in her presence and she had admitted in her deposition that the house of Bhani Tanti were burnt and few clothes and articles have been found burnt in the house but she has been declared hostile by the prosecution, but, her version is worth to take into consideration from which it is well founded that her version substantiates the case of the prosecution to the effect that she had seen the house, articles and clothes of the victim were burnt and some burnt articles and clothes were found in her house, and therefore it is found that although this witness have been declared hostile but she has fully supported the case of the prosecution. 14. P.W. 4 Gangadhar Das is the nephew of the informant and he was a hearsay witness and supported the case of the prosecution that the appellant had burnt the house of the informant including the clothes, utensils etc. as told by the informant P.W.2 Bhani Tanti. 15. P.W. 5 Chandradip Singh, the I.O. of this Case identified the written report of the informant and also proved the FIR which is marked as Ext. 2 and he had categorically deposed in para 4 that he had visited the place of occurrence where the appellant was alleged to have set the house of the informant on fire to cause destruction and the police had collected the cot, some utensils etc. in a broken and damaged condition lying in the room, the broken door was also lying in the room. Few cloths and utensils were found in burnt condition. Food articles wheat rice etc. in a broken and damaged condition lying in the room, the broken door was also lying in the room. Few cloths and utensils were found in burnt condition. Food articles wheat rice etc. were found scattered in the floor, photo calendar was also found in burnt condition and thus the inspection of the place of occurrence done by the I.O. (P.W. 5) is falling in line with the version of the informant as set out in the FIR and no inconsistency is found in the statement of the I.O. and the statement of the victim informant P.W. 2 as disclosed in the FIR and thus the case of the prosecution has been substantiated faultlessly and motive of causing destruction of the properties, time, date and place of occurrence have been proved consistently and uniformly and thus the case of the prosecution is substantiated with the version of this witness. 16. P.W. 6 Raj Kumar Das is a hearsay witness and supported the case of the prosecution although he was declared hostile but he clearly stated in his examination-in-chief that the police interrogated him and the informant Bhani Tanti P.W.2 had told him that the appellant had set her house on fire and the appellant was prosecuted in this case of causing mischief by fire, however subsequently he denied that the police had recorded his statement and then he was declared hostile. 17. P.W. 7 Basant Kumar Das is a hearsay witness and he had come to know about the involvement of the appellant in this case as he got the information that the alleged incident took place in the house of Bhani Tanti where clothes were burnt on fire by which the household articles were also destroyed and he came to know about the incident from the informant Bhani Tanti. 18. P.W. 8 Rajan Das is also a hearsay witness, and he also came to know about this occurrence from Bhani Tanti from whom this witness came to know that the house of the informant P.W. 2 was burnt by the appellant. 19. 18. P.W. 8 Rajan Das is also a hearsay witness, and he also came to know about this occurrence from Bhani Tanti from whom this witness came to know that the house of the informant P.W. 2 was burnt by the appellant. 19. Recapitulating the depositions and testimonies of the witnesses as evaluated in the foregoing paragraphs, it is well found that the evidence of the informant is trustworthy and very categorically and pointedly P.W. 2 the informant stated that it was the accused appellant who was involved in throwing the house hold articles from the house and set on fire the belongings of the house of informant and thereby damaged the articles, which was supported by the seizure list witness P.W. 1. and the P.W. 3 who is FIR named witness and supported the case of the prosecution that police had visited the place of occurrence and collected the burnt articles form the place of occurrence. Further, it is found that the material eye witnesses examined on behalf of the prosecution including the P.W. 1, P.W.2 and to some extent P.W. 3 supported the case of the prosecution although the P.W. 3 has declared hostile by the prosecution. The deposition of the informant P.W. 2 Bhani Tanti is flawless and she has supported the case of the prosecution in totality which is falling in line with the allegations as disclosed in the FIR. Further, the hearsay witnesses P.W. 8, P.W.7, P.W.6, P.W.4 have also coherently supported the case of the prosecution. I.O. has also been examined and inspected the place of occurrence and found the burnt articles which are falling in line with version of P.W. 2 and, therefore, in this view of the matter this Court does not find irregularities in the impugned judgment of conviction and order of sentence against the sole appellant who was found guilty for the offence punishable u/s 448/427 and 436 of IPC and accordingly this Court upholds the conviction of the appellant for the offence punishable u/s 448/427 and 436 of IPC. 20. 20. So far as the sentence is concerned the learned counsel for the appellant submitted that the appellant was also awarded the sentence of fine to a sum of Rs.7000/- (Rupees Seven Thousand Only) and out of the said fine amount Rs.5000/- (Rupees Five Thousand Only) was paid to the victim P.W. 2 Bhani Tanti by way of compensation, to compensate the damages caused to her and the appellant has already deposited the said amount which is evident from the previous order of this Court vide order no. 2 dated 14.06.2005 and, therefore, it is urged on behalf of the appellant that a lenient view may be taken in appreciating the facts with respect to the sentence. Further, it has also been pointed out that almost 22 years have passed from the date of occurrence and the sole appellant was suffering from trauma, misery and mental agony of the criminal proceedings for a long period of time and there is nothing on the record about the criminal history of appellant. 21. Having taking into consideration the aforesaid submission, it is found from the record that he has already suffered a long period in trauma and misery, during the course of the trial and also after passing the conviction and further it is found that there is nothing on record to show the criminal history of appellant. Further, it is also found that now the petitioner is about 54 years old and, therefore, taking into consideration these factors it is just and fair not to send the appellant again in jail and instead of awarding the sentence or imprisonment the ends of justice would be served if sentence of fine is imposed by way of compensation in order to give the informant P.W.2 Bhani Tanti. In this view of the matter the sole appellant is awarded the sentence of imprisonment for the period already undergone and a fine of Rs.3000/- (Rs. Three Thousand Only) is imposed upon the appellant by way of further compensation in order to give it to the victim P.W. 2 Bhani Tanti. It is made clear that this fine amount of Rs.3000/- (Rs. Three Thousand Onlt) is in addition to the earlier fine amount which was imposed by the learned trial court and paid by the appellant. 22. It is made clear that this fine amount of Rs.3000/- (Rs. Three Thousand Onlt) is in addition to the earlier fine amount which was imposed by the learned trial court and paid by the appellant. 22. Since the appellant is on bail and, therefore, a period of four months is given to the appellant from today to make payment of fine of Rs.3000/-(Rs. Three Thousand Only) by way compensation in order to give it to P.W. 2 Bhani Tanti. 23. Accordingly, it is directed that in case of default of payment of fine amount of Rs.3000/-(Rs. Three Thousand Only) by way compensation in order to give it to P.W. 2 Bhani Tanti as awarded by this Court, the appellant will undergo simple imprisonment for a period of one year. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, he will serve the sentence as awarded in case of default of payment of fine so awarded. 24. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment he deposits the fine amount he (appellant) shall be released forthwith on deposit of said fine amount and he shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the victim/informant (PW-2) and on her appearance the said fine amount so deposited by the appellant shall be disbursed to her. In case if the said victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim/informant (PW-2) as the concerned learned trial court may deem fit and proper. 25. Accordingly, the appeal is dismissed as above. 26. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and compliance in this regard.