Md. Sharif Ansari vs State Of Jharkhand

Heard learned counsel for the appellant and learned APP for the State.

This appeal is directed against the judgment of conviction dated 08.03.2006 and order of sentence dated 09.03.2006 passed by Sri Subodh Kumar,

4th Addl. Sessions Judge, (Fast Track Court No. 1), Godda in Sessions Case Nos. 106 of 2004/ 95 of 2005 whereby and whereunder the appellant has

been convicted for the offence under Section 436 of the Indian Penal Code and has been sentenced to undergo R.I. for seven years and fine of Rs.

10,000/- has been imposed with stipulation.

Godda (Muffasil) P. S. Case No. 381 of 2002 has been registered on 23.12.2002 on the written report submitted by Hafazuddin (P.W.-6). As per

the FIR, the appellant along with his brother and father put the house of the informant on fire by pouring kerosene oil and this fact has been narrated

to the informant by his minor son namely Manku Ansari @ Munika @ Sagir (P.W.-2). Due to fire, entire house has been destroyed including

foodgrains, cash of Rs. 1500/- and silver organments of nine bhar kept in that house. When this incident occurred, Manku Ansari @ Munika @ Sagir

(P.W.-2) was present in the house and to save his life, he came out from there. After completion of investigation, the police has found that the case

has not been proved and accordingly, final form has been submitted on 31.01.2003.

A protest petition has been filed by the informant upon which cognizance has been taken against the present appellant only. The case was

committed to the Court of Sessions. Charge was framed under Section 436 of the Indian Penal Code against the appellant, to which he pleaded not

guilty and claimed to be tried.

On conclusion of the prosecution case, statement of the accused under Section 313 of the Cr. P. C. was recorded, in which his defence was denial.

Being aggrieved, the present appeal has been filed.

To substantiate the charges, altogether six witnesses have been examined by the prosecution. P.W. -1, Mathura Prasad Sah is the co-villager, who

has testified that he has been informed regarding the incidence by the son of informant i.e. P. W. 2 that his house has caught fire, but he does not

know who lit fire the house of the informant. He further testified that place in question was not the house, rather it was a “Baithkaâ€, which is

normally used in the villager by the male members of family. P.W.-2, Manku Ansari @ Munika @ Sagir, who is aged about 10 years, is the

eyewitness of the occurrence. As per his version, he was present in the house and saw that the appellant along with his brother and father sprinkled

kerosene oil on the roof and thereafter, lit up the house by using Matchbox by the appellant and due to which, entire house has been destroyed

including foodgrains kept therein. P. W. -3, Kuldeep Sah is also a co-villagers, who has been tendered by the prosecution. P. W. -4, Islam Ansari is

another co-villager, who has deposed that he has been informed by P. W. -2 that his house has been destroyed by the appellant along with his brother

and father. In his cross-examination, he has deposed that there is a land dispute between the parties. P. W. -5, Firoj Ansari is also a co-villager, who

has deposed that he was on a tree and saw that this appellant has put the house of the informant on fire along with his brother and father. In his cross-

examination, he has admitted that a criminal case has been lodged against this witness for outraging modesty of wife of the brother of this appellant

for which a panchayati has been convened. P. W. -6, Hafazuddin is the informant, who has supported the incident as narrated in the FIR. This witness

is not an eyewitness as he has been informed regarding the occurrence by his minor son (P.W.-2). Defence has also produced one witness namely

Md. Shahid (D.W.-1).

It has been argued by the learned counsel for the appellant that the offence under Section 436 of the Indian Penal Code is not made out as there is

no evidence on record that the house in question was a dwelling house covered under Section 436 of the Indian Penal Code. For the said purpose, he

has relied upon para-9 of the judgment rendered by Lucknow Bench of Allahabad High Court in the case of Babulal and Anr. Vs. State reported in

AIR (39) 1952 Allahabad 146. By relying upon the said judgment, argument has been advanced that ordinary double thatched shed resting on bamboos

or wooden or brick pillars having no doors etc. cannot be treated as a building and as such, Section 436 of the Indian Penal Code is not attracted. It

has further been argued that P. W. -1 is an independent witness has deposed that house in question was used for ‘Baithka’ and no material

evidence has been produced regarding the destruction of foodgrains etc, even Investigating Officer has not been examined by the prosecution. Further

Investigating Officer has found that the prosecution story is not true and as such, final form has been submitted. P.Ws. 1, 3 and 4 are independent

witness, but they are not eye-witness of the case and P. W. -5, who has claimed to be an independent witness, has inimical term with the appellant. P.

W. 2 is tutored witness as is evident from the discrepancies in his cross-examination as at one place he said that house in question was put on fire by

the present appellant and at another place, he has alleged that brother of the appellant has put on fire the house. As per P. W. 2 all the three accused

persons i.e. the present appellant, his brother and father have put house on fire, but this story has been disbelieved by the Court below, thus, conviction

of the appellant alone is not sustainable.

Per contra, Mrs. Laxmi Murmu, learned APP has supported the judgment of conviction and has argued that testimony of P. Ws. -1, 3, 4 and 5, who

are independent witness, suggest that the house was put on fire. P. W. -2, who is an eye-witness, has clearly deposed that this appellant has put fire in

the house due to which household articles and foodgrains have been destroyed and as such, ingredient of Section 346 of the Indian Penal Code is

made out and Trial Court has rightly convicted the appellant.

Heard learned counsel for the parties. From perusal of the record, it appears that allegation has been made against the appellant, his brother and

father regarding putting the house of the informant on fire. The appellant is the next door neighbour and there is a dispute between the parties.

Independent witness has testified that the house is a ‘Baithka’, usually used for sitting male members of the family. No witness has suggested

that any of the female members were living or present in the house. No evidence has come that house has any door etc. Further the prosecution story

of the informant has been disbelieved by the Investigating Officer. The Court below has also disbelieved the allegation against the brother and father

of the appellant.

In view of the above discussion and considering the material available on record, this Court finds that there is a cloud of doubt and it is settled law

that benefit of doubt must be extended to the accused. Accordingly, the appellant is acquitted from the charge of under Section 436 of the Indian

Penal Code and the judgment of conviction dated 08.03.2006 and order of sentence dated 09.03.2006 passed by Sri Subodh Kumar, 4th Addl. Sessions

Judge, (Fast Track Court No. 1), Godda in Sessions Case Nos. 106 of 2004/ 95 of 2005 is, hereby, set aside and the appeal stands allowed.

Since the appellant is already on bail, he is discharged from the liability of his bail bonds.