Hukum Singh and Others vs State of U.P.

Vinod Prasad, J.—Three appellants Hukum Singh. Hari Singh and Manik Chand have preferred this appeal challenging their conviction u/s 436/34. I.P.C. and implanted sentence of 4 years R.I. recorded by IInd Additional Sessions Judge. Agra in S.T. No. 319 of 1979, State v. Hukum Singh and others relating to P.S. Etmadpur district Agra vide impugned judgment and order dated 30.6.1981. Stated in brief, prosecution allegations were that on the intervening night between 27/28.1.1977 at 10 p.m., three appellants had set at ablaze the thatch of the victim, Smt. Kesar Dei. P.W. 1 gutting the bedroll and her apparel petticoat and other articles kept inside it. The motive behind the incident was that the accused, who were Tell by caste had objected to fetching of water from their well by the informant Kesar Dei who was a Jatav (SC) by caste.

F.I.R. of the crime was dictated by informant Smt. Kesar Dei to Babu Lal. who scribed it and thereafter she lodged it at police station Elmadpur, district Agra following day 28.1.1977 at 1.00 p.m. against the malefactors measuring a distance of 11 miles.

Head Constable Hakim Singh registered the F.I.R. by preparing Chik F.I.R., Ext. Ka-5 and G.D. entry. Ext. Ka-4 and S.I. Kod Singh. P.W. 4 commenced the investigation. Investigating Officer had interrogated the fact witnesses and had penned down their statements and thereafter, at the pointing out of the informant. Smt. Kesar Dei. P.W. 1, conducted spot inspection and had prepared site plan map, Ext. Ka-1. He had also collected samples of burnt ashes and had prepared it''s recovery memo, Ext. Ka-2. Concluding investigation he had charge-sheeted the accused on 9.5.1977 vide Ext. Ka-3.

On the basis of the charge-sheet case was registered against the accused and they were summoned to stand trial by the Magistrate. Finding their case triable by Sessions Court, it was committed to the Court of Sessions. Accused-appellants were charged u/s 436/34. I.P.C., which charge they denied and claimed to be tried and therefore, to establish their guilt, their prosecution commenced.

In the trial informant Smt. Kesar Dei P.W. 1. Baboo P.W. 2. Lochan P.W. 3 were examined as fact witnesses, whereas Investigating Officer S.I. Kod Singh P.W. 4 was examined as formal witness.

In their statements u/s 313. Cr. P.C. accused denied incriminating evidences appearing against them in the prosecution evidences and pleaded a general defence of false implication and denial. To establish their defence, on preponderance of probability. Kamal Singh D.W. 1 was examined by them as a defence witness.

Learned trial Judge/IInd Additional Sessions Judge. Agra, vide impugned judgment and order, concluded that guilt of the appellant was established beyond all shadow of reasonable doubt and therefore, convicted them for the charged offence and sentenced them to four years R.I. for that crime through impugned judgment and order, which now has been challenged in the instant appeal by the convicted appellants.

Pending final decision of the appeal, one of the appellant Hari Singh expired and therefore, in his respect, instant appeal stands abated and now the appeals of two surviving appellants Hukum Singh and Manik Chand are to be considered.

In the background of above facts. I have heard Sri Anil Malik, learned counsel for the petitioner and Sri Sangam Lal Kesarwanj learned A.G.A. for the State.

Sri Anil Malik, learned counsel for the appellants, assailed the impugned judgment by submitting that the statements of witnesses are full of contradictions and embellishment and cannot be relied upon and prosecution had failed to establish its case without ambiguity and because of caste rivalry appellants were falsely implicated in the incident. It was lastly submitted that, in the event appellants are not acquitted of the charge, they be dealt with leniency in matter of sentence, as the incident had occurred more than thirty three years ago and at present, appellants are near about septuagenarian and they had no criminal background and during pendency of their appeal they have not committed any other crime. Appellants must have settled in life peacefully and therefore, they deserve a compassionate consideration in matter of sentence.

Learned A.G.A. interdicted the submissions by contending that all the fact witnesses had given credible and confidence inspiring evidences without any inconsistency and incongruity and therefore, they have established the charge bereft of all reasonable doubts. In spite of searching cross-examinations, the defence has not been able to dislodge their testimonies and therefore, prosecution case is proved to the hilt. Investigating Officer had collected burnt ashes from the spot and therefore, setting ablaze of the hutment is a proved fact beyond doubt. Motive for gutting the hutment was mentioned in the F.I.R. itself and, therefore, on all material aspects of prosecution allegations, case against the appellants is proved to the hilt and therefore, appeal lacks merit and be dismissed.

I have considered rival submissions and have perused the oral and documentary evidences on record including testimonies of witnesses. Appreciation and analysis of witnesses evidences revealed that all the three fact witnesses informant Kesar Del (P.W. 1). Baboo (P.W. 2) and Lochan (P.W. 3) have corroborated each other and have testified the main substantum of prosecution allegations in its entirety without any ambiguity and inconsistency. Defence has not been able to shake their testimonies and cull out any damaging evidences. All these witnesses have withstood the test of their cross-examinations and hence, it cannot be said that their testimonies suffers from vices of untruthfulness and embellishment, In such a view, once the statements of fact witnesses are clear and cogent that it were the appellants, who had put informant''s thatch to fire reducing it to ashes alongwith articles kept there under there is no reason to disbelieve them and discard their version and hence, prosecution charge against the appellants is established to the hilt. It had been stated by the informant that initially when the ''appellants had approached her hutment, they had asked her to vacate it. Hukum Singh had poured the oil whereas Hari Singh had torched it. During the Incident. Manik Chand was armed with lathi. Bedroll and other apparels alongwith grains kept inside the thatch were gutted in fire. She further testified that she had obtained village pradhan''s permission to erect her thatch on a Government land and for that purpose, she was given a written permission but that paper was also destroyed in the incident. Informant had further disclosed that she had lodged her F.I.R. next day morning at 8 or 9 a.m. and she had dictated it (F.I.R.) at the spot without consultation or deliberations. As stated above informant had been supported on all material aspects of the matter by rest of the two fact witnesses Baboo (P.W. 2) and Lochan (P.W. 3). They have further disclosed the time of the incident at 10 p.m. and had also evidenced that soon after registration of the crime, they were interrogated by the Investigating Officer. Some insignificant omissions and contradictions had occurred in their testimonies, which do not affect the merits of the prosecution allegations. Investigating Officer S.I. Kod Singh P.W. 4, had lend credence to the prosecution version convincingly as he had collected the ashes of the burnt thatch and apparels from the spot and there was absence of reason for false implication. In such a view, it cannot be said that no incident, as alleged by the prosecution, had not occurred in which appellants had not participated as the culprits. There was absolutely no reason for the informant to cook up a false story regarding appellant''s involvement. Prior to the present incident, there had been no litigation or any other enmity with the informant. Defence has not been able to suggest any convincing and acceptable reasons for cooking up a false story against the appellants.

On an over all analysis. I am of the opinion that so far as conviction of the appellants are concerned, it is well merited and does not require any interference by this Court.

Turning towards the sentence, which should be imposed upon the appellants, all the appellants were in their thirties and forties at the time of the incident, which had occurred more than three decades ago. Pending consideration their appeals, one of the appellant Hari Singh expired and his appeal was abated on 18.12.2006. Rest of the two surviving appellants are near about septuagenarian. They had no criminal history nor they had absconded or tampered with prosecution witnesses. There was no conviction to their credit and these two appellants must have now settled in life. In such a view, I am of the opinion that though a lenient view should be taken while sentencing these two appellants but not without adequately compensating the complainant victim. On the facts of the incident, a cumulative fine of Rs. 25,000 imposed on each of the two appellants with Rs. 20,000 as compensation out of it to the informant with period of imprisonment already undergone by them shall meet the ends of justice. The appeal is partly allowed. Conviction of appellants No. 1 and 3. Hukum Singh and Manik Chand for offence u/s 436/34, I.P.C. are hereby sustained but their sentences are altered to the period of imprisonment already undergone by them with fine Rs. 25,000 on each of them, out of which a compensation of Rs. 20,000 is awarded to the informant or her legal heirs. The appellants are directed to deposit the fine with a period of one month from the dale of notice issued to them for the said purpose by the learned trial court. Failing to deposit the fine, both the appellants shall be arrested and they be lodged in jail to serve out rigorous imprisonment for a period of one year as default sentence. In the event compensation is deposited, trial court will notice the informant or her legal heirs and shall disburse the compensation. Appellants'' sureties shall be discharged only after they deposit the fine or are arrested to serve out the default sentence.

Appeal is allowed in part as above.

Let the copy of the judgment be certified to the trial court for its intimation.