Pratap Chandra Sahu vs State of Orissa

B.P. Ray, J.—This appeal is directed against the judgment of conviction and order of sentence dated 23.12.1991 passed by the learned Addl. Sessions Judge, Kendrapara in S.T. No. 108 of 1991/27 of 1991 wherein the Appellant has been held guilty of charge u/s 436, I.P.C. and sentenced to undergo R.I. for four years.

The prosecution case in short is that on 9.2.1989 at about 2.00 A.M.in the night, the accused persons, namely, the Appellant-Pratap along with Aviram, Nadia and Aina (since acquitted) came in a body and forcibly entered inside the Plot No. 77 of village Karamkul and set fire to the house of the complainant thereon.

The plea of the accused persons was of complete denial.

The prosecution examined 5 witnesses in all. P.W.2 is the complainant, P.W.5 is one Partha Charan Samantaray whose house was alleged to have been set-fire P.Ws.1, 3 and & 4 are the villagers, who gathered at the spot hearing the shout of the complainant and found the house to have been set ablaze and accused persons running away from the place of occurrence.

Defence has examined two witnesses. They were the Officer-in-charge, Patkura P.S. and A.S.I., Marshaghai Out Post on the date of occurrence. D.W.1, the O.I.C., Patkura P.S. has proved the F.I.R. lodged by the complainant under Ext. C. He has also proved the other contemporaneous documents such as seizure list and Zimanama etc.

Before going to the merit, the background of the case needs to be looked into. The present prosecution arises out of a complaint petition, registered as ICC No. 91/1989. The complainant-P.W.2 has deposed that as the police submitted final report in Patkura P.S. Case No. 21/89 initiated at his instance, without proper investigation, he lodged the complainant. Prosecution did not choose to prove the F.I.R. but the same was proved by the defence as Ext. C through D.W.1, the Officer-in-charge of Patkura P.S., who had registered the case. The recital of the F.I.R., Ext.C, lodged by P.W.2 would go to show that when the uncle of the complainant was sleeping in the hut, at about 3 A.M. in the night some miscreants set fire to the same, so he woke up and raised hullah. Hearing the shout, the complainant and Ors. reached the spot. It has been further mentioned that the complainant suspected the accused persons have done the mischief. There was no whisper therein that any one had seen the accused persons setting fire to the hut. In the complaint petition, the complainant, however, came forward with a new story alleging that the Appellant along with the acquitted accused persons have committed the crime. This is contrary to his (P.W.2) earlier allegation disclosed in the F.I.R., Ext. C, which has since been proved to have been filed by him from his evidence as well as the evidence of D.W.1-O.I.C, Patkura P.S. and also the D.W.-2-A.S.I., Marshaghai Out Post, who investigated the case. From his (P.W.2) evidence, it appears that the complainant was not satisfied about the investigation. The Police Officer before whom the information was lodged being examined as D.W.1, deposed that on 10.2.1989, he received a written report, under Ext. C, from Natabar Samantaray, the complainant. From the evidence of D.W.1, the O.I.C., Patkura P.S., who had registered the case that he had drawn up the formal F.I.R., Ext.D on the information of thecomplainant-Natabara Samantaray, vide Ext.D and directed the A.S.I, of Marshaghai Out Post-D.W.2 to take up the investigation. The A.S.I, of Marshaghai Out Post-D.W.2 in his evidence deposed to have visited the spot, seized the remanents, such as half burnt wood pieces, straw, ashes etc., prepared the seizure list, Ext.E, in presence of witnesses and left the same in the zima of the complainant under Zimanama, Ext.B/2. The complainant-P.W.2 in his evidence though has stated that he has not received the notice regarding submission of final report, but in the next breath, he has admitted his signature in the notice u/s 173, Code of Criminal Procedure to be Ext.A. The-aforesaid belies his claim that he had not lodged the F.I.R., Ext.C and speaks volume of his being a truthful witness.

In order to prove the occurrence and complicity of the accused persons, the prosecution has relied upon the evidence of P.Ws.2 and 5 who claimed to have seen the occurrence. P.W.2 in his evidence has deposed that in the night of 9.2.1989 hearing some sound, he came out of the house and found the accused Pratap, Aina, Aviram and Nadia were standing there. Accused Aviram, Nadia pulled the thatch and accused Aina set-fire to the straw bundle. Accused-Pratap with the help of the burning straw bundle set-fire to his house. He has further deposed that seeing the fire, he raised hullah and his uncle (P.W.5) woke up. This part of the evidence of P.W.2 is contrary to his allegation made in the F.I.R. In the FIR (Ext.C) the witness had disclosed that at about 3.00 A.M. in the night of 9.2.1989 his uncle woke up when he found fire in his house and shouted for help Shearing the same, he (P.W.2) and Ors. gathered there. He had further mentioned that since he had enmity with the accused-Pratap, he suspected the mischief to have been committed by him. The evidence in the Court is wholly contrary and contradictory on materials particular to that of the FIR (Ext.C) lodged by him immediately after the occurrence. The complaint case has been instituted two months after the occurrence. This goes long way to prove that the accusations made by the witnesses in the complain case are all embellishment and the same has been done after much deliberation to rope in the accused persons as there was previous enmity. Earliest version of the witness in the FIR discloses that he had not seen anybody setting fire to his house. As such naming the Appellant and Ors. in the complaint case in his evidence does not inspire confidence. Similarly, P.W.5 is also an untruthful witness. Though he has posed himself to have seen the occurrence, but the same is found incorrect in view of the evidence of P.W.2. P.W.2 has stated that on seeing the fire, he raised hullah and hearing him, his uncle woke up. From this evidence, it is clear that P.W.5 woke up only after the hullah raised by P.W.2. Since by the time P.W.2 raised hullah, the fire had already been set to the house and he appears to have not seen the accused persons causing mischief, P.W.5 seeing the accused persons doing the mischief can hardly inspire confidence. This is further fortified from his further evidence that he does not whisper a single word about the role played by the accused Aviram & Nadia. All these discrepancies and contradictions in the evidence of P.Ws. 2 & 5 strike at the very root of the prosecution case and cast doubt in the versions of seeing the Appellant-accused causing the mischief.

When the version of P.Ws. 2 and 5 that they have seen the occurrence is doubtful, the version of P.Ws. 1, 3 and 4 who have seen the accused persons running away from the spot can hardly inspire confidence inasmuch as had it been so, the complainant who had lodged the report would not have forgotten to mention the said fact in the report, Ext.C. So, the version of P.Ws. 1, 3 and 4, who deposed to have seen the accused persons running away from the spot, also appears to be an embellishment and improvement and as such can hardly be relied upon. Furthermore, in absence of any other evidence solely relying on the said version of P.Ws. 1, 3 & 4, it can not be said that Appellant had set fire to the hut. Coupled with the same it can not be lost sight that the complainant in this case had animosity with the Appellant, which is an admitted fact. No doubt animosity is a double edged weapon which provides both motive for the crime as well as for false implication. But, here in this case, in the absence of any cogent evidence with regard to complicity of the Appellant, it can very well be said that the same leans more towards a false implication, which is fortified from the fact that in the F.I.R. (Ext.C) lodged immediately after the occurrence though no definite allegation was there against the Appellant and his co-accused persons, but they were arrayed as accused in the complaint filed. Besides the same, there being no other cogent evidence on record to come to a conclusion that the Appellant set fire to the hut of the complainant, the trial court appears to have erred in appreciation of the evidence on record in coming to a conclusion that the Appellant as the author of the offence alleged. Furthermore, then in the same set of evidence, the trial court acquitted other co-accused persons it should not have convicted the Appellant, on the same, without any cogent reasons.

Hence, the impugned judgment of conviction recorded on such evidence by the trial court is indefensible and can not be sustained. Consequently, the appeal is allowed, the judgment of conviction and order of sentence passed against the Appellant by the trial court, are set aside. The Appellant is acquitted of the charge.