Radhey Chaudhary vs The State of Bihar

Honourable Mr. Justice Rajendra Kumar Mishra

As in this case, no one is appearing on behalf of the appellant for the last several dates, Mr. Sanjay Kumar Pandey, Advocate, is appointed as amicus curiae on behalf of the appellant to assist the Court. The appellant, Radhey Chaudhary, has preferred this appeal against the judgment of conviction dated 24th January, 2000 and order of sentence dated 25th January, 2000 passed in Sessions Trial No. 130 of 1997/313 of 1995 by the court of 5th Additional Sessions Judge, Gaya, whereby the 5th Additional Sessions Judge, Gaya, convicted the appellant, Radhey Chaudhary, u/s 436 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for four years and imposed fine of Rs. 2000/-. In case of default of payment of fine, he was further directed to undergo further rigorous imprisonment for two months.

The prosecution case, as contained in the written report (Ext. 2) of the informant, Karoo Chaudhary (P.W. 3), is that on 9.5.1993 at about 4.30 O''clock in the day he was standing in the back of his house then saw that the accused-appellant, Radhey Chaudhary, son of Basant Chaudhary, was fleeing away setting fire in his Taadi shop. He raised hullah then many villagers rushed there and saw the occurrence. Due to said fire in the hut, the hut completely burnt. The hut was used for selling the Taadi and the same was not used for residence. The cause of occurrence is that in a proceeding u/s 144 of the Code of Criminal Procedure regarding the land on which the hut was situated, the order was passed in his favour and due to that reason the accused-appellant, Radhey Chaudhary, set the hut on fire. The informant further alleged that due to said fire no material was damaged except the Taadi, kept in the two earthen pots.

On the basis of the written report (Ext. 2) of the informant, Karoo Chaudhary (P.W. 3), Gaya (Muffassil) P.S. Case No. 55 of 1993 dated 10.5.1993 was instituted against the accused-appellant u/s 435 of the Indian Penal Code. On investigation police submitted the charge sheet on 31.5.1993 under the aforesaid Sections for trial of the accused-appellant. Accordingly, the Chief Judicial Magistrate, Gaya, took the cognizance of the offence u/s 435 of the Indian Penal Code and sent the record to the court of Sri S.N. Tiwary, Judicial Magistrate, First Class, Gaya, for trial. In course of trial, the learned Magistrate committed the case to the court of sessions on 20.8.1995 arriving at the conclusion that prima facie offence u/s 436 of the Indian Penal Code is made out, which is exclusively triable by the court of sessions.

After commitment of the case to the court of sessions, the charge u/s 436 of the Indian Penal Code was framed against the accused-appellant, who pleaded not guilty and, accordingly, the trial proceeded.

The defence of the appellant was of false implication on account of land dispute regarding which a civil suit is pending between the parties.

The prosecution, in order to prove its case, examined altogether 5 witnesses, out of them P.W. 4, Mahesh Chaudhary and P.W. 5, Chunni Singh, are formal witnesses. P.W. 4, Mahesh Chaudhary, has proved the protest petition (Ext. 3) filed by the informant, Karoo Chaudhary, whereas P.W. 5, Chunni Singh, has proved the formal F.I.R. (Ext. 5) and the case diary of Gaya (Muffassil) P.S. Case No. 55 of 1993 (Ext. 6). The other witnesses are P.W. 1, Krishna Chaudhary, P.W. 2, Bipti Devi and P.W. 3, Karoo Chaudhary, the informant of the case.

On the other hand, the defence got exhibited the copy of the plaint of Title Suit No. 289 of 1998/306 of 1993 (Ext. A), in which the accused-appellant, Radhey Chaudhary, is the plaintiff and the informant, Karoo Chaudhary, is one of the defendants and also the certified copy of the order (Ext. B) passed u/s 9 of the Bihar and Orissa Municipal Survey Act in Objection Case No. 1096 of 1989.

P.W. 1, Krishna Chaudhary, has deposed in his evidence that the occurrence is of 9.5.1993. On that day at about 4.30 P.M. he was coming down from the palm tree then he saw that the accused-appellant, Radhey Chaudhary, came from eastern direction to west direction and set fire in the Taadi shop by a match stick. He raised hullah then the informant, Karoo Chaudhary, came and the accused-appellant, Radhey Chaudhary, started to flee away. Just after the occurrence, many villagers gathered there and tried to caught hold of the accused-appellant, who succeeded in fleeing away. This witness has further stated in paragraph-7 of his cross examination that Durga, Kali, Karu, Prasad Chaudhary, Govind and Lakhan Chaudhary are the sons of his grand father, Hira Chaudhary. He is the son of Kali Chaudhary. P.W. 2, Bipti Devi, is the wife of his brother, Koili Chaudhary. This witness has further stated in paragraph-13 of his cross examination that he does not know that the litigation regarding the land on which the hut was situated is going on in between the accused-appellant, Radhey Chaudhary and the informant, Karoo Chaudhary. This witness has further stated that he saw the occurrence after coming down from the palm tree and, thereafter, he raised hullah. At that time, none was there. After hullah, the people had come there. This witness has further stated in paragraph-16 of his cross examination that he has stated before the police that the accused-appellant, Radhey Chaudhary, had come from east direction and set fire in the hut by a match stick. This witness has further stated in paragraph-18 of his cross examination that when the police had come the villagers have not stated about setting the fire by the accused-appellant, Radhey Chaudhary, before him.

P.W. 2, Bipti Devi, has stated in her evidence that the occurrence is of about 4.30 P.M. of six years before. At that time, she was at her door and she saw that the accused-appellant, Radhey Chaudhary, set fire through Lohati and fled away. Due to setting fire the Taddi shop was fully burnt. In the shop, Karoo Chaudhary, used to reside but at the time of occurrence he was not there. This witness has further stated in paragraph-3 of her cross examination that Karoo Chaudhary (P.W. 3) is her cousin father-in-law and Krishna Chaudhary (P.W. 1) is her brother-in-law. This witness has further stated in paragraph-5 in cross examination that after setting the fire on the hut hullah was raised and about 50-60 villagers had come there but she was unable to disclose their names. This witness has further stated in paragraph-10 of her cross examination that her statement was recorded before the police and she has stated in her statement before the police that the accused-appellant set the fire on hut through Lohati. On suggestion drawn by the defence, she has stated in paragraph-12 of her cross examination that it is not true that she has stated before the police about the name of the person, who had set fire in the hut. She has further stated in paragraph-16 of her cross examination that regarding the land on which the hut is situated the litigation is going on in between the accused-appellant, Radhey Chaudhary and the informant, Karoo Chaudhary.

P.W. 3, Karoo Chaudhary, is the informant of the case. He has stated in his evidence that the occurrence is of about 4.30 P.M. of 9.5.1993. At that time, he was coming from his house to his shop. He saw that the accused-appellant, Radhey Chaudhary, who was armed with lathi, set fire on his Taadi shop through a match stick. He has further stated that there were Taadi, cot and bedding in the shop. After setting fire, the accused-appellant, Radhey Chaudhary, fled away. He has further stated that the cause of occurrence was the proceeding u/s 144 of the Code of Criminal Procedure, which ended in his favour and due to that reason, the accused-appellant, Radhey Chaudhary, set fire on the hut causing loss of Rs. 2000/- to him. On setting fire in the hut, he raised hullah then Rajjak Mian, Kumar Singh, Sri Yadav and Ramchandra Pandey had come, who had seen the occurrence and extinguished the fire. He has further stated that he had gone to the police station on the next day. He has further stated that Durga Chaudhary had got his written report prepared and after reading over the same he had put his signature and proved his signature on the written report (Ext. 2). This witness has further stated in paragraph-18 of his cross examination that he had stated the name of the people, who had come at the place of occurrence before the police. He has also stated that he did not remember whether he had stated before the police about his residing in the hut.

From the evidence of P.W. 1, Krishna Chaudhary, and P.W. 2, Bipti Devi, it is clear that they are respectively the cousin brother and sister-in-law of the informant, Karoo Chaudhary (P.W. 3). P.W. 1, Krishna Chaudhary, in paragraph-2 of his evidence, has stated that after setting the fire on the hut, on hullah, the informant, Karoo Chaudhary (P.W. 3) and others came and the accused-appellant, Radhey Chaudhary, fled away from there. P.W. 2, Bipti Devi, has also claimed to be eye witness to the occurrence saying that he saw the accused-appellant, Radhey Chaudhary, who set the fire in hut by Lohati. Several contradictions have been put forward by the defence regarding the statement before the police to P.W. 1, Krishna Chaudhary, P.W. 2, Bipti Devi, and also the informant, P.W. 3, Karoo Chaudhary, as appears from paragraph-16 of the evidence of P.W. 1, Krishna Chaudhary, from paragraph-10 of the evidence of P.W. 2, Bipti Devi and from paragraph-18 of the evidence of Karoo Chaudhary, but in this case the Investigating Officer has not been examined. P.W. 3, Karoo Chaudhary, has stated in paragraph-2 of his evidence about the name of the persons, who had rushed at the place of occurrence, but none of them have been examined in course of trial by the prosecution. P.W. 2, Bipti Devi and P.W. 1, Krishna Chaudhary, belong to the family of the informant, Karoo Chaudhary (P.W. 3). As such, it would be unsafe to hold the appellant guilty for the offence u/s 436 of the Indian Penal Code relying on the contradictory evidence of the aforesaid witnesses.

In view of the aforesaid discussions, I am of the view that the prosecution has not been able to prove the case beyond all reasonable doubts and the appellant is entitled to get the benefit of doubt.

In the result, the judgment of conviction and order of sentence passed against the appellant are hereby set aside and the appeal is allowed and the appellant is acquitted of the charge. The appellant, Radhey Chaudhary, is on bail, so he is discharged from the liabilities of his bail bond. Let a copy of the first and last page of this judgment be supplied by the office to Mr. Sanjay Kumar Pandey, Advocate, who has assisted this Court as amicus curiae.