Sarju Pandey @APPELLANT@Hash State of Jharkhand

Ratnaker Bhengra, J.

Heard the parties.

This criminal appeal is directed against the judgment of conviction and order of sentence, passed by the learned 3rd Additional Sessions Judge,

Palamau at Daltonganj dated 12th September, 2001 in S.T. No. 184/96 convicting the appellants under Sections 436/ 143 of the Indian Penal Code and

sentencing them to undergo rigorous imprisonment for three years.

Prosecution story, in brief, as per fardbeyan of the informant Gulbasi Kuwar, PW-1 is that on 30.06.1993 in the night the informant was sleeping

with her grand daughter Indri Kumari inside Dhaba by closing the door. All of a sudden at 10:00 p.m. her grand daughter cried that the house was

burning. Then both the grand mother and the grand daughter came out of the house and her grand daughter cried that accused Sarju Pandey was

fleeing away after setting fire. Indri further stated that Sarju Pandey was accompanied by Ramdeo Sao and six to seven persons. On hearing cry

Dharmdeo Pandey and others came and extinguished the fire. Later on, her grand daughter named the accused persons who flee away after setting

fire. Informant said that on account of the weak eye sight the informant could not identify any of the accused in the night. The reasons behind the

occurrence as stated in the fardbeyan by the informant was that on the previous day to the occurrence the accused Ramdeo Sao, Laxmi Sao were

ploughing her lands which was protested by her.

On the basis of the fardbeyan of the informant, FIR was registered as Manatu (Tarhasi) Case No. 44/1993.

The charges under Sections 143, 452 and 436 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be

tried. Trial was held and after the conclusion of trial, accused were convicted and sentenced as aforesaid, Hence, this appeal.

Prosecution examined altogether 11 witnesses in support of the case. PW-1, Gulbashi Kuwar is the informant herself, PW-2 is Bilash Sao, PW-4

Fuleshwar Ram is seizure list witness, PW-8 Indri Devi is the grand daughter of informant, PW-9 is Chintamani Pandey and PW-10 is the IO of the

case, PW-3, PW-5, PW-6 and PW-7 are hostile witnesses. Defence has also examined two witnesses. DW-1 is Murari Pd. Gupta and DW-2 is Hari

Nandan Sukla. Both these witnesses are formal and have proved the documents filed by defence.

PW-1 Gulbashi Kuwar is the informant herself. She deposed that on the day of occurrence, she was sleeping with her grand daughter in the night.

The accused-appellants set fire in her house as a result her house was burnt. She further deposed that she had seen the accused from her own eyes

setting fire in the house and she was not narrated by her grand daughter. She further said that she came out of the house without lantern but it was

moonlit night. The informant denied the defence suggestion that the burnt house is the purchased property of the accused Ramdeo Sao.

PW-2 Bilash Sao deposed that at the time of the occurrence it was 10:00 p.m. and he was near the Shiv Mandir. The tube light was lighting with

the generator of Rajmani Pandey. All of a sudden he saw the flame of the fire towards East. When he reached near the door of Bhikhari Sao he

found that all the accused persons entered into the house of Bhikhari Sao. He arrived at the house of Gulbashi Kuwar and assisted in extinguishing the

fire. He further deposed that Gulbashi Kuwar and Indari Kumari told that the accused persons had set fire in the house and fled away.

PW-4 Fuleshwar Ram is a seizure list witness. He deposed that seizure list was prepared in his presence and he had put his signature on it which

was marked as Ext.1/1. In the cross-examination at para-3 he said that he had put his signature after preparation of the seizure list by the police and

he did not sign on the blank papers.

PW-8 Indri Devi is the grand daughter of the informant and eye witness to the occurrence. She deposed that on the day of occurrence she was

sleeping with her grandmother. She woke up on hearing whispering from outside the house and saw from the gap of the door that the house was

burning. She awakened her grand mother. She came out and identified all the accused persons in the flame of the fire. The accused persons fled

away towards West abusing her grandmother. She further deposed about the occurrence which had taken place in the day on account of the tilling of

the land of her grandmother by the accused Ramdeo Sao. In para-4 she said that before the incidence, in the evening when she had gone to the shop

of Sadhu Sao, the accused persons said seeing her that the old lady (her grandmother) will not listen and therefore, she had to be burnt and killed and

on the same night they set fire to the house.

PW-9 Chintamani Pandey deposed that on the day of occurrence there was fire in informant’s house. He heard hulla that informant’s

house has been burnt. He rushed to the house of informant and saw that her house was burning. He saw accused persons fleeing towards West

abusing the informant.

PW-10 is the Investigating Officer. He stated that the house of the informant is mud built having tiled roof and the main entrance is without door.

The courtyard is in the middle of the house. He has further said that there is one Dhaba in the North of the courtyard having a door and there is a gap

in the door and from the said gap the outside is visible. According to the further evidence of the IO, there is one Dhaba in the South of the courtyard

and its bamboo and ballies were found to be burnt and the broken tiles fallen to the ground. This Dhaba is the real place of the occurrence. The

ground of the Dhaba was found wet. IO has proved the fardbeyan marked as Ext.2 and the formal FIR marked as Ext.3. He further said in para-10

that the burnt pieces of bamboos and broken tiles were seized by him and a seizure list was prepared which was marked as Ext.4.

Prosecution has also brought on record documentary evidence pertaining to the disputed land for showing the possession of the informant Gulbasi

PW-1. Ext.7 is certified copy of C.S. Khatian, Ext.7/1 is certified copy of the order of C.O. Manatu, Ext. 7/2 is the certified copy of the certificate

dated 03.01.1994.

Against the documentary evidence relating to the land filed by the prosecution, Defence has also brought on record documentary evidence. Ext.A,

Ext.A-1 and Ext.A-2 are rent receipt in the name of Ramdeo Sao. Ext B and Ext.B-1 are registered sale deed executed in favour of Ramdeo Sao.

Arguments of the learned counsel for the appellants:

Learned counsel for the appellant had first of all made a perusal of the fardbeyan of the informant, Gulbashi Kuwar or PW-1. He has stated that

the entire allegation is a frame up of the appellants and the informant has gone so far as to even involve a minor person in her motivated actions.

Learned counsel has then highlighted certain points from the deposition or evidence of informant PW-1. It is stated that the incident is of 30.06.1993

but the FIR is lodged on the next day. There are many aspects in the deposition that are not in the fardbeyan. Nowhere in the fardbeyan it is said that

the accused or appellants were abusing the informant while they were running away. In the fardbeyan, PW-1 says that she herself did not see the

accused persons setting fire and her grand daughter saw the accused persons setting fire and informed her as to the identity of the accused but in her

deposition she has stated that she saw the accused persons setting aflame the house with her own eyes.

Learned counsel for the appellants further submitted that another divergent aspect is an incident faced by PW-8 grand daughter of the informant

of hearing on the same day at a shop of one Sadhu Sao, the accused discussing that old lady i.e. her grand mother will be burnt and killed. Learned

counsel points out that this vital narration is not in the FIR, but added in the deposition. Counsel further says that PW-1 has also in her fardbeyan

admitted that the sons of the elder brother of her husband have passed on to the lands to the appellants. Counsel here says, then disputed land and

property belongs to the appellant and hence no case can be made against the appellants. They were farming their own lands. Counsel also adds that in

the fardbeyan, the accused Niranjan is not mentioned, while in the deposition his name has been added. Counsel for the appellants says that for the

aforesaid inconsistencies and particularly the fact that PW-1 is an old woman, who can barely see, move so over a distance, and yet contra to her

fardbeyan in her evidence she claims to have seen the appellants committing the alleged crimes is unbelievable and hence, she is a totally unreliable

and untrustworthy.

Learned counsel for the appellants has then referred to the evidence of PW-2 Bilash Sao and argued that he has said nothing about the appellants

setting the house on fire. He only saw the accused running away and that too from some distance. Counsel says such distant sighting cannot be used

for convicting for burning of the house. His name did not figure in fardbeyan in list of persons who helped in extinguuishing fire, but he has been made

prosecution witness. Continuing, learned counsel submits that PW-4 Fuleshwar Ram is a seizure list witness but he has not said anything about burning

of anything. PW-3, PW-5, PW-6 and PW-7 all have not supported the prosecution case and were declared hostile.

Learned counsel for the appellant, referring to PW-8, Indri Devi, submitted that seemingly she only seems to have seen the burning as claimed by

her. Counsel argues that PW-8 has said seeing through the gap in the door that the house had been set on fire. She saw the accused persons and

named them. So, no conviction should be based on the claims of a single person who claims to be an eye witness. PW-8 also deposed that the accused

persons ran towards West, abusing her grand mother. Counsel says that her grand mother did not say anything about abuses. Learned counsel further

pointed that in the deposition of PW-8, the incident of ploughing takes place on the same day while in the FIR incident of ploughing is said to occur in

the previous day. Learned counsel submitted that there was no such crime committed by the appellants by forming an unlawful assembly or getting

together to burn the house.

Learned counsel for the appellants further submitted that the evidence of PW-9, Chintamani Pandey refers to the incident regarding the ploughing

of the fields, as if it occurred on same day, however, in the FIR, it is said to have occurred on the previous day.

Learned counsel for the appellants has then concluded by submitting that as far as appellant No.9, Arbind Sao is concerned, nothing has been

made out against him, of either being at the place of occurrence, or even setting the place on fire. In the fardbeyan or in deposition, his name has not

been mentioned. So, he should be given at least the benefit of doubt. Moreover, counsel has also claimed that he was a juvenile at the relevant time

and cannot be as such convicted and sentenced. Hence, there is miscarriage of trial.

Learned counsel for the appellants has also supported his contentions and has relied upon the following cases:

(i) B.N. Singh and others versus State of Gujarat and others [(1990) 2 SCC 154];

(ii) Darga Ram alias Gunga versus State of Rajasthan [(2015) 2 SCC 775];

(iii) Parsuram Pandey & others versus State of Bihar [2005 (1) JLJR 12 (SC)];

(iv) Sujit Biswas versus State of Assam [2013 (3) JBCJ 211 (SC)].

Arguments of the learned counsel for the State:

Learned counsel for the State has argued that a sole witness if trustworthy and reliable then his evidence is capable for conviction. He has

submitted that PW-2, PW-8 and PW-9 are trustworthy witnesses, and along with the evidence of the IO offence of the accused persons is fully made

out.

Learned counsel for the State submitted that PW-2, Bilash Sao, is an eye witness of seeing the accused persons fleeing away from the place of

occurrence when he saw the flames of burning from the East. He moved towards the source of fire, then he saw the accused persons entering

Bhikhari Saw’s house. Learned A.P.P. says PW-2 had named Sarju Pandey, Mahendra Sao, Shambhu Sao, Surajdeo Sao, Ramdeo Sao, Laxmi

Sao, Santosh Sao, Dwarka Sao and Niranjan. PW-2 helped to put out the flame of the house, hence, occurrence cannot be denied.

Counsel for the State has then referred to the evidences of PW-8, para-4 wherein she had deposed about overhearing the conversation between

some of the accused in the shop of one Sadhu Sao where a reference was made for removing the old lady (her grandmother). This witness had

deposed that she saw the accused persons standing at a distance of ten yards, and they fled away abusing. PW-8 recognized the accused persons in

fire light. Learned counsel submited that it is possible to identify the accused at a distance of ten yards as there was some light, and this witness has

said there was flames.

Referring to the evidence of PW-9, Chintamani Pandey, learned counsel for the State submitted that he witnesses the burning of the house. He

had rushed to the place of occurrence on alarm. He was told by the informant PW-1 about the burning of the house by the accused persons. This

witness has also named nine accused persons, but not Arbind, however includes one Niranjan. He had seen the nine accused persons fleeing away.

He also deposed about the altercation over ploughing of the land between the parties on the day of occurrence in the day time. He had helped to put

off flames. He also deposed about the accused abusing the informant Gulbasi and fleeing away towards West.

Regarding PW-10, the IO, learned counsel for the State has submitted that he has described the place of occurrence specifically. The IO has

mentioned the door of the informant having a gap from where one can see outside. At the place of occurrence burnt bamboo and broken tiles were

found. The ground below was wet, indicating attempts to douse the fire. Lastly, learned counsel submitted that the judgment of conviction, passed by

the learned court below is proper and requires no interference.

FINDINGS

After having gone through the records of the case, the evidences and the arguments of both the counsels, the following is observed and concluded:

(i) One of the main points raised by the counsel for the appellants is that the informant herself is not a witness of the occurrence because though in

one instance she says she had seen the appellants burning the house or part of the house where the informant and her grand daughter resided, she has

also admitted that she is short of good sight and was unable to see effectively. Therefore, she could not have actually identified the appellants who

have been named in the FIR. Learned counsel for the appellants had further said that along with the unreliability and untrustworthiness of the

informant herself, no case can be made out, and therefore, relying also on PW-8, Indri Devi, who is the grand daughter of the informant, should also

not be done. Therefore, with such a frontal assault by the appellants on two of the persons, who in effect, are said to have been in the house or the

place of occurrence when the arson or burning took place, I think it would be appropriate to first of all see whether any occurrence i.e. arson had

taken place at all. It may be appropriate to begin with witnesses who are not from the family or apart from the informant and her grand daughter.

(ii) PW-2 Bilash Sao deposed that all of a sudden he had seen the flame of the fire towards East and then when he reached near the door of Bhikhari

Sao he saw the accused persons entering into the house of Bhikari Sao. Thereafter, PW-2 has deposed that he went to the house of Gulbashi Kuwar

and assisted in extinguishing the fire. Therefore, from his evidence, at least it is apparent that an arson did take place. Then this Court has the

evidence of PW-9, Chintamani Pandey. He has also confirmed the burning of the house and he had also gone to the place of occurrence on alarm.

Therefore, even from his evidence, it is definite that an occurrence of arson had taken place. In the evidence of the IO, who is PW-10, he said that he

had visited the place of occurrence and had found burnt pieces of bamboos, broken tiles fallen and the ground below was wet in that particular area

indicating attempts of having tried to douse out the fire.

(iii) Therefore, with the evidences of PW-2, PW-9 and PW-10, who is the IO, it is convincingly concluded that occurrence of burning or an arson had

taken place. Taken along with the allegations made by the informant, along with corroboration in the evidence by her grand daughter PW-8, regarding

the occurrence of burning, it is well-established that the occurrence of burning or arson did take place.

(iv) As I have come to the conclusion that incidence of burning took place, now it is to be seen that where the place of occurrence was i.e. more

particularly whether the place of occurrence was the house of the informant Gulbasi Kuwar which was set on fire by the accused persons. From the

evidence, I find that it is the house of Gulbashi PW-1 to which PW-2 and PW-9 also rushed on alarm. It is the place where PW-4, Fuleshwar Ram,

who is a seizure list witness, had deposed that he had met the police that is in the house of Gulbashi Kuwar. IO PW-10, had also seen the burnt

bamboo and broken tiles of the house of informant and inspected the same and collected the evidence and therefore, cementing the fact that the place

of occurrence is the place where PW-1 informant and her grand daughter PW-8 were residing.

(v) Now this Court has to see as to how or by whom such arson was initiated. It is indicated from the fardbeyan of the informant that Sarju Pandey

and Ramdeo Sao were fleeing with six to seven persons after setting fire to the house. The other persons mentioned, who have been also listed in the

FIR, though in lower part of the fardbeyan, are Mahendra Sao, Shambhu Sao, Chhedi Sao, Laxmi Sao, Santosh Sao, Dwarka Sao and younger son of

Ramdeo Sao. PW-8, who is Indri Devi, has also named nine persons; however, she has not mentioned one Arbind. PW-2, Bilash Sao, had seen the

accused persons fleeing and entering into the house of Bhikhari Sao. He had mentioned the names of Sarju Pandey, Mahendra Sao, Shambhu Sao,

Surajdeo Saw, Ramdeo Sao, Laxmi Sao, Santosh Sao, Dwarka Sao and one Niranjan in his deposition. He had also not mentioned Arbind Sao but

there is introduction of one Niranjan. The evidence of PW-9 or Chintamani Pandey who saw the accused persons fleeing away and he has also

referred to the names of nine accused persons but he had also not mentioned Arbind; however, he also included one Niranjan. Therefore, it seems

there is some confusion as to whether Arbind was there or not from the depositions of these four mentioned prosecution witnesses, also there is some

confusion regarding Niranjan. However, regarding the other accused persons mentioned there is consistency and as far as the fardbeyan goes it is the

first document that had initiated the allegations or even the case.

(vi) So from the evidences of the informant, PW-1, Gulbashi Kuwar, PW-8, Indri Devi, grand daughter of the informant and from the evidence of

PW-2, Bilash Sao and PW-9, Chintamani Pandey, it is apparent that appellant No.9, Arbind was not present in the burning of the house of the

informant because his name is not mentioned neither in the fardbeyan of the informant nor any prosecution witnesses has named him in their

deposition in the list of nine accused persons. Hence, he is acquitted of the charges and his conviction is set aside.

(vii) So far remaining accused-appellants are concerned, from perusal of the fardbeyan and as per the evidences of prosecution witnesses, it is evident

that the remaining appellants have participated in the offence and fled from the scene of occurrence. The leading role in setting fire to the house of the

informant is attributed to the appellant No.1 Sarju Pandey and appellant No.3 Ramdeo Sao. Thus the remaining appellants being member of unlawful

assembly set fire in the house of the informant Gulbashi Kuwar PW-1 which caused destruction of her house. Hence, the learned court-below rightly

convicted the remaining appellants for the charges under Section 436 IPC along with Section 143 IPC.

(viii) From the records and from the arguments that have been placed, appellant No.3 had also been in litigation with the informant. Documentary

evidences relating to the disputed land has been filed from both prosecution and defence side. So, motive behind the offence is land dispute. We are

living in a civilized society and no one is permitted to take the law in his own hand. The dispute regarding immovable property has to be adjudicated by

the Court of law to avoid violence and maintain peace in the society.

(ix) Before concluding the arguments, learned counsel for the appellants has referred to some judgments which deserve to be answered. Regarding

his objection on the grounds of Section 313 Cr.P.C. from a perusal of the impugned judgment, it is not divulged that the appellants had raised this issue

in the court-below, and therefore he is precluded from doing so now. Even so, appellants have not been able to show prejudice caused to them in the

light of the evidence procured.

As per the report, appellant No.1, Sarju Pandey and appellant No.3, Ramdeo Sao, have passed away. Their appeal thus stands abated.

As far as appellant No.9, Arbind Sao is concerned, as discussed above, he is acquitted of all charges. Here, it is pertinent to note that by order

dated 11.05.2018, this Court had referred the matter regarding the determination of age of appellant Arbind Sao to the Juvenile Justice Board. Juvenile

Justice Board has declare the appellant Arbind Sao as juvenile as on the day of occurrence he was of the age of 15 years, 6 months and

28 days. As this Court has acquitted him of the charges, the protection available to him under the Juvenile Act is of no use to him now.

As far as the rest of the other appellant No. 2, and appellant Nos. 4 to 8 are concerned, they stand convicted. Accordingly, appellant No.2

Shambhu Prasad Sao, appellant No.4 Santosh Prasad, appellant No.5 Mahendra Sao, appellant No.6 Chhedi Sao, appellant No.7 Laxmi Sao and

appellant No.8 Dwarka Sao are held guilty of the offence under Section 436/ 143 IPC.

Regarding sentence, counsel for the appellants had pleaded for leniency based on the age of occurrence, and that the appellants had faced the

rigors and vigors of trial, and relative periods of sentences, which is considered. So, their sentences is modified and reduced to a period of 3 months SI,

to be undergone by them from the time of their re-arrest. Any period already undergone shall not be off set against this 3 months. Their bail bonds are

cancelled. Learned concerned court-below is directed to take steps for procuring their arrests.

Hence, this appeal is allowed in context of appellant No.9, Arbind Sao. For the remaining surviving appellants, this appeal is, accordingly,

dismissed, with modification in sentence.