Jamuna vs State of U.P.

C.A. Rahim, J.—This revision has been directed against the judgment and order of the learned Additional Sessions Judge and Special Judge (Economic Offences), Jhansi dated 6.2.1984 in Criminal Appeal No. 134 of 1983. By that judgment, he dismissed the appeal preferred by the accused-Appellant against his conviction and sentence passed by the learned Vth Munsif Magistrate, Jhansi convicting the Appellant u/s 435, I.P.C. and sentenced him to R.I. for two years and fine of Rs. 2,000.

The prosecution case is that in between the night of 18/19.3.1983 at about 1.00 a.m. when the complainant was sleeping at his Khalihan, accused Jamuna went there and set fire in the harvested crop which was stored in the Khalihan. When the flame and smoke were emitting, the complainant woke and saw accused running away after setting fire in the harvested crop. He raised alarm whereby Prabhu (P.W. 2) and Hari who were also sleeping in the nearby Khalihan followed by some other persons came there and saw the accused running away. He was chased by the complainant and the witnesses but he threatened to kill and escaped. The fire was brought to control but by that time, 12 cart load of harvested crops burnt to ashes whereby 60 maunds of wheat were damaged. The complainant became puzzled and on the next day at about 4.45 p.m., he lodged a first information report. During trial, to prove the occurrence, the prosecution has examined the complainant as P.W. 1 and Prabhu as P.W. 2.

Sri R. B. Kher, appearing for the Appellant, has submitted that there was inordinate delay in lodging the first information report for which it should not be relied. It appears that the occurrence took place at about 1 a.m. in the night and the first information report was lodged on the next day at about 4.45 p.m., i.e., after 15 hours of the incident. Sri A. K. Singh Yadav, A.G.A. has submitted that after the incident, the complainant was not only puzzled but he became unconscious. The submission made by the learned A.G.A. does not seem to be improbable as in the villages harvested crops are the price of the labour and perspiration of the entire year which when damaged before the very eyes of the agriculturist, it is quite natural that he would be puzzled which may even lead to unconsciousness. I do not consider that the explanation of the complainant which was appreciated by the courts below cannot be believed.

Learned Counsel has then submitted that in cross-examination, P.W.I has stated that he saw the accused setting fire though the prosecution case was that he was sleeping at that time and the said fact was not mentioned in the first information report. So the learned Judge has wrongly relied on the evidence of P.W.1 and convicted the accused. The said point was raised in the lower courts and disposed of with reasons. It appears that in the first information report, it was stated that the complainant P.W. 1 saw that the accused was running away after setting fire. The said fact was repeated in examination-in-chief. But in cross examination, a clarification was sought whether the complainant has stated that he saw the accused to set fire with match stick. The statement in the first information report "Aag lagakar bhagtey huye dekha" does not exclude that he did not to set fire. It was not stated in the first Information report in detail how the fire was set by the accused but he explained the circumstances in cross-examination when it was put to him. I do not find any exaggeration or improvement as held by the court below. It appears that the court below relied on the evidence of both the prosecution witnesses leaving the said portion as improvement. It is true that the revisional court should not have made any other interpretation even when that is possible besides the interpretation made by the trial court and the court to appeal. Even if the fact remains that the complainant (P.W. 1) saw the accused running from place where the fire was set and that too in the dead of night. The accused has no business in the khalihan of the complainant. If he was found to flee away from the place where harvested crops were set to fire and if he threatened the complainant and the witnesses while chasing him, the circumstances indicate that he was guilty of the offence.

Learned Counsel has submitted that there was no motive for setting fire. The learned lower appellate court has discussed in details and his finding is that motive is not essential part to commit an offence, because sometimes motive remains in the heart of the accused and is not disclosed. In cross-examination of P.W. 1, it was stated by him that about 15 days ago, he had a quarrel with accused Jamuna. Since it was elicited in cross-examination made by defence counsel, it cannot be said that since the said fact did not appear in the first Information report, it should not be taken into account. Any way motive or no motive, the crux of whole thing is whether P.W. 1 and P.W. 2 can be believed. The evidence of P.W. 2 is that the accused ran away after setting fire to the harvested crops of P.W. 1. Learned Counsel has submitted that it is in evidence that P.W. 1 raised alarm and thereafter P.W. 2 woke up and in that circumstances, it would not be possible for P.W. 2 to see if the accused set fire or not. That argument has been accepted by the lower court and found that if it is considered that the accused was fleeing away from the place of the occurrence and threatened not to chase him and if it is found that 14 cart loaded harvested crops of the complainant was put on fire, the court can draw a presumption from that circumstances that what P.W. 2 has stated was true and considering his evidence along with the evidence of P. W. 1, it can be said that the prosecution was able to prove the guilt! of the accused beyond all reasonable doubt.

Apart from the observation of the lower court. if we look into the evidence of P.W. 1 and P.W. 2, I do not find any reason for not accepting the finding of both the lower courts. The learned revisional court has its limitation. It cannot construe a second opinion by reassessing the evidence when both the courts below held that in favour of the prosecution.

Considering all the circumstances, I find no reason to interfere with the finding of both the courts below.

The learned Counsel has then submitted to substitute the substantive sentence to fine considering the delay in disposing of this revision when the accused has suffered imprisonment in the meantime.

Considering the delay in disposing of this revision, I find that the sentence be reduced to the period already undergone and the imposition of fine to the extent of Rs. 5.000 would meet the ends of justice. It appears that the learned trial court has awarded sentence to pay a fine of Rs. 2.000 which was to be given to the complainant on realisation towards compensation. Considering that 60 maunds of wheat were destroyed in the fire, the entire amount of Rs. 5,000 should go towards compensation.

The revision is, therefore, dismissed. The conviction u/s 435, I.P.C. is hereby affirmed but the sentence of imprisonment is reduced to the extent the period already undergone. He is also sentenced to pay fine of Rs. 5,000 in default to suffer R.I. for one year. The fine if realised the entire amount should be paid to the complainant. Since the complainant has not been made a party in this proceeding the learned trial court after realisation of fine, if any, shall issue notice to the complainant asking him to withdraw the same on a given date.

With the above observations and modifications the revision is disposed of.