Manoj Kumar and Others vs State of C.G.

Sunil Kumar Sinha, J.—These appeals have been directed against the judgment and order dated 8th of August, 2007 passed in Sessions Trial No. 43/2006 by the Sessions Judge, Kanker, North Bastar (C.G.) whereby the Appellants have been convicted and sentenced in the following manner with a further direction to run''the sentence concurrently:

Conviction Sentence

Under Section 148 IPC R.I. for 2 years

Under Section 427 IPC R.I. for 2 years

Under Section 436 read with Section 149 IPC R.I. for 10 years and fine of Rs. months

The facts, briefly stated, are as under:

Complainant Alakh Niranjan (P.W. 7) was running a tailoring shop in the rented premises of Prakashlal Sen (P.W. 10) at Pushwada Chowk in village Bebarti. His shop was adjacent to the shop of Prakashlal Sen. Appellants Brijwati and Dev Prasad Nishad had encroached upon the government land which was in front of the house of Prakashlal Sen (P.W. 10). Their encroachment was removed on the instance of Prakashlal Sen. The allegations are that on 2.12.2005, at about 8-8.30 p.m., the Appellants armed with deadly weapons formed unlawful assembly, participated in rioting and thereafter in prosecution of the common object of that assembly, they put the tailoring shop of the complainant on fire. Complainant Alak Niranjan (P.W. 7) lodged a written report (Ex.-P/7) in police station, Kanker, based on which, a regular First Information Report (F.I.R.) was lodged under Ex.-P/12. During the course of investigation, some burnt articles were seized from the shop under Ex.-P/1, P/2 and P/3. A Panchnama showing the loss to the tune of Rs. 50,000/- was also prepared under Ex.-P/4. Site plan was prepared under Ex.-P/8. Another site plan was prepared under Ex.-P/13. The Appellants were taken into custody and their memorandum statements (Ex.-P/16, P/18, P/20, P/23, P/25, P/27, P/29, P/52, P/54 and P/56) were recorded u/s 27 of the Evidence Act and certain articles were shown to be seized at the instance of the Appellants under Ex.-P/17, P/19, P/22, P/24, P/26, P/28, P/30, P/53, P/55 and P/57 (these were the common discoveries and seizers made in Crime No. 389/2005 for which a separate charge-sheet was filed).

After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Kanker, who in turn committed the matter to the Court of Sessions Judge, Kanker, where the trial was conducted and the accused/Appellants were convicted and sentenced as aforementioned.

The conviction of the Appellants is based on the testimonies of 6 eye witnesses namely Ramchandra Nayak (P.W. 3), Rakesh Nayak (P.W. 4), Budhiyar (P.W. 6), Prakashlal Sen (P.W. 10), Usha Sen (P.W. 11) and Geeta Bai (P.W. 13).

Mr. V.C. Ottalwar and Mr. Rajeev Shrivasta, learned Counsel appearing on behalf of the Appellants, argued that there is no evidence on record to connect the Appellants with the commission of the aforesaid offence. There is absolutely no evidence to prove that they participated in rioting or they put the shop on fire. It appears that when the shop of Prakashlal Sen was put on fire, accidentally, the fire spread and it also caught the shop of complainant Alakh Niranjan which was an adjacent shop.

On the other hand, Mr. Sudhir Bajpai, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court.

We have heard the learned Counsel for the parties at length and have perused the records of the sessions case.

To appreciate the evidence on record, we would firstly like to quote the written report (Ex.-P/7) lodged by Alakh Niranjan (P.W. 7):

Alakh Niranjan (P.W. 7) was declared hostile. He deposed that on 3.12.2005, when he reached to his shop, he saw it in burnt condition. He categorically deposed that he does not know as to who put the shop on fire. He was cross examined by Additional Public Prosecutor but nothing material could be brought on record. On the cross examination by the defence, he very categorically admitted that none of the neighbourers had stated to him as to who set the shop on fire. In fact, when he went to the hospital, Praskashlal Sen (P.W. 10) and his son had given the names by writing them on a paper. The written report is a typed report. A perusal of the said written report would show that there are many interpolations and names of Appellants Brijlal, Suraj Nishad, Santosh, Vijay, Manoj, Jageshwar, Shankar Nishad and the words total 15-16 persons have been inserted by hand writing. When the said interpolations and many other insertion in various portions of the report like A to A, C to C, D to D, E to E, F to F, G to G, H to H and I to I were put for explanation to this witness, he could not explain it and deposed that he cannot say that who wrote all this but he had not written those portions. This shows that in fact, a typed report was prepared and then the names of many Appellants were inserted by hand writing by somebody else than the complainant and it was a report lodged on the instance of Prakashlal Sen and his son.

Ramchandra Nayak (P.W. 3) is father-in-law of Budhiyar. He deposed that on the fateful night, the Appellants came with petrol, kerosene oil, knife etc. and they put the house on fire and thereafter a scheduled tribe boy was thrown in burning fire by Appellant Dev Prasad. In cross examination in Para-7, he admitted that when the Appellants assaulted him, his son-in-law Budhiyar took him inside the house and shut down the shutter. He very categorically admitted that thereafter, he was inside the house till the entire incident was over and he came out when the police party came there after the incident. He further added that firstly the incident of burning took place and thereafter assault was made. In Para-9 of his cross examination, he was confronted with his police case diary statement (Ex.-D/1) in which there were omissions that the Appellants came there with kerosene oil and petrol and they were also armed with weapons. He stated that he had told all this and if they are not mentioned in his case diary statement, he cannot tell the reasons for the same. He was also confronted for the statement that Dev Prasad had thrown one boy in burning fire which was also omission in the case diary statement which he said to have told to the police. There are many other omissions and contradictions also. The omissions are vital which go to the root of the matter. Omissions and contradictions, referred to above, would show that he is not reliable, he is trying to make out a new case before the Court with theory of petrol and kerosene oil, therefore, we do not rely on the testimony of this witness.

Rakesh Nayak (P.W. 4) is son of Geeta Bai. He deposed about the assaults given to his mother. He was also confronted by his police case diary statement (Ex.-P/2). He deposed that he had told the police about bringing of petrol and kerosene oil by the Appellants. If they are missing in his police case diary statement, he cannot tell the reasons for the same. He was also confronted about the weapons carried by the Appellants. The most important fact is that he categorically admitted in the cross-examination that when the incident of fire took place, he was not present at the scene of occurrence.

Budhiyar (P.W. 6) was also examined as an eye witness regarding putting the shop in question on fire. After deposing general things, perhaps regarding the incident of his own shop and shop of Praskashlal Sen (which are not the subject matters of the present trial), he specifically admitted that when the incident of fire took place, he was inside the house and he had shut down the shutter from inside. He very specifically admitted that he could not see as to how the shops of Praskashlal Sen and Alakh Niranjan caught fire.

Prakashlal Sen (P.W. 10) is the landlord of the shop in question. He deposed that on the fateful day at about 8.30 p.m., the Appellants came to his house and assaulted his wife. He took his wife inside the house and closed the doors. Thereafter he went on the terrace and saw that the Appellants were present in front of the shop of Budhiyar Jain. Daughter of Brijwati namely Hemlata was carrying a container. Brijwati was putting the shop of Budhiyar Jain on fire and other Appellants were shouting like holi hai. Thereafter they came towards his house. He came down from the terrace. Seeing all this, he went inside the house. The Appellants then broke open the lock of his shop, poured kerosene oil in the shop and put the shop on fire by match-stick. This was pre-planned. They were shouting like holi hai. He and his wife had seen all this from the inner door of his house which opens in the shop. The Appellants also put the shop of Alakh Niranjan (subject matter of the present case) on fire.

In cross examination, he was confronted with his police case diary statement (Ex.-D/3) in which the facts relating to bringing of kerosene oil and match-stick etc., were missing. The fact in relation to seeing the Appellants putting the shop on fire from the inner door of his house was also missing in the police case diary statement. Further, keeping a container by daughter of Brijwati and shouting of the Appellants like holi hai etc., were also omissions in his case diary statement. When all this was put to him, he stated that he had told all this to the police and if they are missing in his case diary statement, he cannot tell the reasons for the same. We may note that in Para-13 of his cross examination, he very categorically admitted that it is true to say that he was inside the house at the time of the incident and it is also true to say that he could not see as to who put the shop on fire. And further that he was throughout inside the house till the police party came there. The above part of evidence of P.W. 10 shows that he did not witness as to who set the shop on fire. The exaggerations in his evidence are of such nature that they create a shadow of doubt on the credibility of this witness and we do not accept his testimony.

Usha Sen (P.W. 11) is wife of Prakashlal Sen. She also deposed in similar fashion. She was also confronted with her police case diary statement (Ex.-D/4). The facts in relation to bringing the petrol and kerosene oil by the Appellants are also not there. She also admitted that it is true to say that when the incident of fire took place, she was inside the house and she remained in the house till the police party came there. This witness was throughout accompanied by her husband Prakashlal Sen about whom it comes that he could not see as to who set the shop on fire because he was inside the house along with his wife. Therefore, the outcome of the evidence of P.W. 11, Usha Sen, is that she also did not witness as to who put the shop on fire.

Geeta Bai (P.W. 13) also claimed to be an eye witness. She deposed about the marpit which was subject matter of S.T. No. 155/2006. She deposed that after giving telephonic message to the police from village Satlor when she came back to her house in village Bebarti alongwith the Police, she saw that alongwith. her own house, the house of Usha Bai was also burnt. The testimony of this witness regarding putting the shop of the complainant on fire by the Appellants or any one of them appears to be doubtful on account of vital omissions in her diary statement (Ex.D-5) and we do not rely on her such testimony.

In appreciation of entire evidence led by the prosecution, it was not established beyond all reasonable doubts that a rioting took place in front of the shop of complainant Alakh Niranjan. It was also not established that who put the shop of complainant Alakh Niranj an on fire, or the Appellants or any one of them committed mischief causing damage to the properties belonging to the complainant. It appears that when the shop of Prakash Sen was put on fire, accidentally the shop of the complainant also caught fire which was adjacent to the shop of Prakash Sen and taking advantage of all this a written report was lodged on the instance of Prakashlal Sen and his son in which firstly the names of only 3 Appellants, Dev Prasad, Devchand Nishad and Brijwati were mentioned in typing and later on, many other names were inserted by making interpolations by hand writing.

For the foregoing reasons, the conviction and sentences awarded to the Appellants under the aforementioned Sections of IPC cannot be sustained.

Accordingly, the appeals filed by the Appellants are allowed. They are acquitted of the charges framed against them.

It is stated that Appellants Devchand Nishad and Jageshwar @ Jage Nishad are in jail since 6.12.2005 and 23.12.2005 respectively and the other Appellants Dev Prasad Nishad, Ranjit Nishad, Shankar Nishad and Brijwati are in jail since 3.12.2005. They be set at liberty forthwith, if not required in any other case. Appellants Brijlal Nishad, Manoj Kumar, Surajlal and Devlal are on bail.

Their bail bonds are discharged.