Mishrilal Singh vs State of Bihar

M.L. Visa, J.—This appeal is directed against the judgment and order dated 18th February, 1980 passed by the 2nd Addl. Sessions Judge, Motihari in Sessions Trial No. 122 of 1982/54 of 1987, convicting and sentencing the appellant to undergo R.I. for 10 years u/s 436, I.P.C. ''

The case of prosecution in short is that the informant Harishchandra Singh (P.W. 2) after demolishing his old ''gowas'' (a cattle shed) was construction a new ''gowas'' of straw and bamboos, at that time he had some altercation on 21-2-82 with Ram Jageshwar Singh, father of appellant, on account of passage. The appellant at that time had given him threatening that he would set his ''gowas'' on fire. The village panchas decided the matter and according to their decision, the informant constructed his ''gowas'' shifting further from the passage. On the night between 22-2-82 and 23-2-82 at about 1 O''clock the informant awoke on hearing of breaking out fire and he found that his ''gowas'' was burning and the house of Most. Fulmatia had also caught fire and the villagers were engaged in putting the fire out. The informant also ran and joined the villagers for extinguishing the fire but his entire ''gowas'' and the house of Most. Fulmatia were completely burnt. Nagendra Mukhia (P.W. 1) son of Most. Fulmatia told the informant that he had seen the appellant sprinkling kerosene oil on the ''gowas'' of informant and setting it on fire and by the time he raised ''hulla'' and the villagers came there, the fire had engulfed the ''gowas'' of informant and also the house of Most. Fulmatia. The grand daughter of Most. Fulmatia who was sleeping at that time in her house received some burn injuries caused by fire.

V.K. Shrivastava (P.W. 4) at that time was posted as Officer-in-charge at Kundwachainpur Police Station. On 23-2-82 Chowkidar Rambilash Hazra (not examined) went to police station and informed that due to fire the house of Most. Fulmatia and the informant had been burnt and the villagers were agitating against the, appellant whose name had figured in the commission of fire, P.W. 4 after making entry in station diary proceeded to village Kharuha where he recorded the fardbeyan (P.W. 1) of informant at about 6.30 p.m. on the same day and sent tine fardbeyan to the police station where formal F.I.R. (Ext. 4) was drawn up and he himself took up the investigation of the case. He visited the place of occurrence, seized burnt korai (ashes of burn bamboos) from the ''gowas'' and burnt rice and utensils from the house of Most. Fulmatia and prepared a seizure list (Ext. 2) and recorded the statement of witnesses and after completion of investigation submitted charge-sheet u/s 436, I.P.C. against the appellant. After the commitment of the case to the Court of Session charge u/s 436, I.P.C. was framed against the appellant who was put on trial.

The case of appellant before the Court below was complete denial of the charge and his false implication in the present case. After the trial the Court below found the appellant guilty u/s 436,1. P.C. and, accordingly, convicted and sentenced him to undergo R.I. for 10 years,

The prosecution has examined four witnesses in this case. Harishchandra Singh (P.W. 2) is the informant. Nagendra Mukhra (P.W. 1) is the eye-witness, who had seen the appellant setting fire to the ''gowas'' of informant. Jagarnath Singh (P.W. 3) is the seizure list witness, in whose presence the I.O. V.K. Shrivastava (P.W. 4) had seized the remains of burnt karai from the ''gowas'' of informant and burnt rice and utensils from the house of Most. Fulmatia and put. his signature. Nagendra Mukhia (P.W. 1) has stated that on the night at about 1.30 O''clock he came out from his house for urinating when he saw appellant setting lire to the house of informant and he identified the appellant in the light of torch which he was carrying. He has further stated that because of the fire set to the house of informant his own house also caught fire because at that time western wind was blowing very fastly. He told this fact to the informant and also raised ''hullo,''. The paddy, rice, clothes and aluminum utensils kept in his house were completely burnt and his mother and niece received burn injuries. In cross-examination he has stated that at the time of occurrence when he came he found the appellant sprinkling kerosene oil and setting fire after lighting a match stick. Harishchandra Singh (P.W. 2) the informant, has stated that at the time of occurrence he was sleeping and on hearing ''hulla'' of fire breaking out he awoke and found that his ''gowas'' and the house of Most. Fulmatia were burning in fire and the villagers were engaged in extinguishing the fire but his house and the house of Most. Fulmatia were completely burnt. He has further stated that P.W. 1 told him that appellant had set fire to his ''gowas''. About the genesis of occurrence he has stated that when he was re-constructing his ''gowas'' the appellant had stopped him and there was a panchayati but in spite of it the appellant had thrown away thatches and had given him threatening that he would set fire to his ''gowas''. He has proved his signature (Ext. 1). V.K. Shrivastava (P.W. 4), the I.O. has stated that on 23-3-82 at about 7.00 a.m. after receiving information from Chaukidar Rambilash Hazra he went to the village Kharuha, recorded the fardbeyan of informant and found that the ''gowas'' of informant and the thatched house of Most. Fulmatia were completely burnt and the ''osara of one Ram Jageshwar Singh adjacent to the house of Most. Fulmatia Devi was also burnt and he then seized burn ''korai'' from the ''gowas'' of informant and burnt rice and utensils from the house of Most. Fulmatia and prepared seizure list (Ext. 2).

Learned Counsel on behalf of appellant has argued that the informant in para 5 of his evidence has admitted that the ''gowas'' was a thatched house which he had constructed about 1 or 2 days prior to the occurrence and it was without doors and it was lying vacant and admittedly, at the time of construction of this ''gowas'' the appellant had raised dispute that it was being constructed on a passage and a panchayati was held and informant after moving further away from the passage constructed this ''gowas''. Because neither the ''gowas'' was being used as a dwelling house nor for the purpose of keeping any property, Section 436, I.P.C. will not be attracted in this case. It is true that the informant has admitted that at the time of occurrence the thatched house which was newly constructed was without any door and was lying vacant but at the same time it is also true that not only the ''gowas'' of informant but the house of Most. Fulmatia was completely burnt by the fire. This finds support from the evidence of P.W. 1, who is the son of Most. Fulmatia and P.W. 4 the I.O. The next point urged on behalf of appellant is that the informant in para 8 of his evidence has admitted that the house of appellant was situated on a land adjacent east to the ''gowas'' of informant and he has further admitted that the house of appellant was also burnt and this fact completely falsifies the case of prosecution against the appellant of setting ''gowas'' of informant on fire because the appellant could not have thought of setting fire to the ''gowas'' of informant because in that case there was danger of damage to his own house also. I am unable to accept this submission. It has come in the evidence of prosecution witnesses that at the time of setting fire western wind was blowing fastly. The evidence of prosecution witnesses fully supports the case of prosecution that it was the appellant who set fire to the ''gowas'' of informant and because western wind was blowing very fastly the flames of fire were carried to the adjoining house of Most. Fulmatia as well as to the house of appellant himself. It is true that at the time of occurrence the ''gowas'' of informant was not being used as a dwelling house or for custody of any property but at the same time the appellant must have known that if he sets fire to that ''gowas'' he may put the life and property of persons living in houses made of straws adjacent to the ''gowas''.

I, therefore, find and hold that the Court below has rightly found the appellant guilty u/s 436, I.P.C. On the point of sentence the appellant has been sentenced to undergo R.I. for ten years. The appellant has already remained in jail custody from 24-2-82 to 1-7-82 and again from 16-7-88 to 11-5-89, i.e., about 1 year 2 months.

Considering the facts and circumstances of the case, I find that a sentence for the period already undergone by appellant in custody in connection with this case would meet the ends of justice. The sentence of appellant is, therefore, reduced to the period already undergone in custody.

In the result, with the aforesaid modification the judgment and order of the Court below is hereby confirmed and the appeal is dismissed. The appellant is on bail. He is discharged from the liabilities of his bail bonds.