Sidheshwar Pandey and Sukhdeo Pandey vs The State of Jharkhand

D.K. Sinha, J.—The instant criminal appeal is directed against the judgment of conviction and order of sentence recorded against the appellants by the 2nd Additional Sessions Judge, Deoghar in S.T. No. 6 of 1996/1 of 2001 by which both the appellants were convicted u/s 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years.

The prosecution story in short was that the informant Baleshwar Pandey (P.W. 7.) presented a written report before Kunda police station narrating interalia that in the night intervening 23.5.1994 while he with his nephew P.W. 2 Shyam Sunder Pandey was sitting on the roof of the house and both were in agony as they had cremated a close relation in the day hours, in the meantime at about 12 O''clock the informant spotted a burning object coming across his roof which fell on the roof of the hut centrally located in his court yard which inflamed the hut instantaneously. The informant then immediately turned back from which direction the burning object came and he witnessed the appellants fleeing towards their house who could be identified in the light of bulb as also in the moon light. On the alarm there being raised by the informant and his nephew the villagers assembled and assisted in extinguishing the fire that had engulfed the hut. The occurrence was witnessed by Muktinath Pandey (P.W. 3) and others who claimed to have seen the appellants running away from the place of occurrence. The informant thereby sustained loss on account of burning of cloths worth Rs. 1500/- which were kept inside the hut. The informant alleged that the appellants had committed mischief by causing fire in his house. The criminal law was set in motion on the basis of the written report of the informant by registration of Mohanpur (Kunda)P.S. Case No. 59 of 1994 on 23.5.1994 for the alleged offence under Sections 436/427 of the Indian Penal Code. After investigation charge sheet was submitted only u/s 436 of the Indian Penal Code against them. The appellants were put on trial for the charge u/s 436 of the Indian Penal Code, as they had pleaded not guilty.

The Learned Counsel appearing for the appellants assailed the impugned judgment and order passed by the trial judge on the ground that the written report was presented before the police station after about 24 hours of the alleged occurrence after due deliberation and consultation though the police station was situated only at the distance of 3 k.m. from the alleged place of occurrence and that no explanation was accorded for such inordinate delay, as such, it could be inferred that the appellants with whom the informant was on inimical terms having long litigation at the Deoghar courts were implicated falsely and maliciously and the learned trial judge without appreciation of this aspect convicted the appellants mechanically.

Advancing his arguments the Learned Counsel submitted that admittedly there was no eye witness of the alleged occurrence and the prosecution witnesses including the informant and his nephew claimed having seen the appellants at some distance running away towards their house situated in the neighbourhood. The Learned Counsel attracted the attention that on alarm several witnesses assembled at the scene but none of them ever attempted to apprehend the culprits by chasing them. They even did not visit the house of the appellants to interrogate about their involvement, immediately after the alleged occurrence. No independent witness could be produced and examined on behalf of the prosecution except the interested and partioned witnesses though the informant including the other witnesses were consistent that on the alarm of fire, Shivnarayan Pandey and Shaktinath Pandey, had appeared at the scene but they were not brought to the witness box. The Learned Counsel pointed out that according to the prosecution case, the hut made of straw was situated in middle of the court yard of the informant surrounded by Pucca rooms with pucca roof, alleged to be set on fire by the burning object which came from out side across the boundary of the house from the eastern side. Neither seizure list of the burning object nor the remains of the burning object could be produced before the trial court in support of the prosecution case that the hut of the informant was actually burnt. The prosecution miserably failed to prove that the hut in question was a dwelling house or a place of keeping the house hold articles or any other equipments, cloths etc. which was set on fire so as to attract the offence u/s 436 of the Indian Penal Code. He further pointed out that the identity of the appellants could not be established beyond doubt. The witnesses including the informant were consistent that they had identified the appellants at some distance from their back side in the night while they were running away towards their house in the light of the street light. But without objective finding of the Investigating Officer -as to whether he found street light on the path way which led to the house of the appellants. According to the witnesses, the burning object came from the eastern side of the brick built room and the measurement of the room was given as the length of the roof to be 20 cubic 20 feet wide and 10 feet in height with the railing and it was thrown with such velocity and force like a missile that it could burn the hut thereby causing damage to the property worth Rs. 1500/- only. Such story that has been propounded by the informant and other witnesses appeared to be unfounded which could not be practically possible. The prosecution failed to adduce evidence that the hut was used as a place of worship or as a place of human dwelling or as a place of custody of property It was stated that the clothes worth Rs. 1500/- kept in the hut were burnt but without seizure of burnt pieces.

Finally the Learned Counsel exhorted that the appellants have been highly prejudiced for non-examination of the I.O. as the appellants could be denied to put question to the I.O. about his objective finding when he visited the place of occurrence and location of the house of the witnesses who could appear at the scene soon after the occurrence and the distance of the house of the appellants from the alleged place of occurrence. Admittedly, there was no eye witness of the alleged occurrence. However in their individual statement recorded u/s 313 Code of Criminal Procedure the questions were put to the appellants that each of them had set the house of the informant on fire on 22.5.1994 without specifying the manner of their participation in the alleged offence. In that manner each of the appellants was confronted with such material that was not brought on the record in the evidence of prosecution witnesses as such, both the appellants were highly prejudiced and therefore, their conviction and sentence cannot be sustained under law. The specific case of the defence during cross examination of the witnesses was that the appellants were falsely implicated at the instance of the informant and the other witnesses with the intention to grab their properties. The appellants had proved Exts. A and A/1 related to complaint Case (P.C.R.) 147 of 1992 which was instituted against the informant P.W. 7 Baleshwar Pandey indicative of the fact that enmity was prevailing between the parties. On the contrary it could be presumed that the informant by taking the advantage of fire in the small hut for whatever may be reasons cooked up story after due deliberation and consultation with other witnesses, implicated the appellants maliciously with certain motive to harass them.

The learned A.P.P. strongly opposed the contention raised on behalf of the appellants and submitted that the witnesses including the informant (P.W. 7) were consistent having seen the appellants running away from the place of occurrence towards their house and it was the strong circumstance against them for their conviction. Both the appellants were identified by P.W. 2 Shyam Sunder Pandey, P.W. 4 Sukhdeo Pandey and P.W. 5 Nuneshwar Pandey in the light of electric bulb and in the moon light and they were natural witnesses living in the neighbour. Their credibility cannot be discredited only because they were the near relatives of the informant. Non-examination of the Investigating Officer was not going to prejudice the defence of the appellants as the witnesses were consistent in their testimony even of the minute details of the place of occurrence and the circumstances available against the appellants that they had set the hut of the informant on fire by throwing burning object and thereby charge u/s 436 of the Indian Penal Code could be proved against each of them.

Having regard to the facts and circumstances of the case, argument advanced for and on behalf of the appellants as also for the State respondent, one thing that I find that none of the prosecution witnesses claimed having seen any of the appellants throwing the burning object across the pucca roof of substantial dimensions causing fire in the centrally located hut made of straw in the courtyard of the informant P.W. 7 Baleshwar Pandey.

On the alarm raised by the informant which caused commotion, P.W. 4 Sukhdeo Pandey and P.W. 5 Nuneshwar Pandey woke up in the dead of night and claimed having identified the appellants fleeing away in the light of electric bulb and moon light, towards their house at some distance. They also did not claim to be the eye witnesses and their testimony does not inspire confidence for the reason that the house of the appellants, who are full brothers is situated at some distance from the alleged place of occurrence i.e. a little more than hundred yards. To my view, such distance could be covered hardly within 5 minutes and it was not the evidence that the said witnesses quickly woke up and opened their eyes as soon as the hut caught fire and they identified the appellants running towards their house. As such, a reasonable doubt is created as to the credibility of the evidence of such witnesses. At the same time identification of accused in the dead of night at some distance from behind their back cannot be considered to be proper identification, may be in the light of electric bulb or in the moon light. There appears substance in the argument of defence that the appellants were highly prejudiced for non-examination of the Investigating Officer as each of them was denied of opportunity to cross-examine him on his objective finding as to what he found when he visited the place of occurrence? As to whether such hut was used as the place-of dwelling or was a place of keeping the household articles which reduced into ashes in fire? Whether there were electric bulbs on the path way through which it was stated that the appellants were spotted while fleeing away? These all questions in my view were relevant and the appellants were denied opportunity to put.

No independent witness could be produced before the Trial Court and some of them were withheld even not named in the column of witnesses of the charge-sheet and they were Damru Pandey, Shiv Narayan Pandey and Shaktinath Pandey, who had arrived at the place of occurrence.

To attract the charge u/s 436 I.P.C. the important ingredient is that mischief be caused by setting fire either in the dwelling house or a place of keeping household article. It was stated that seizure list of some burnt articles was prepared but the same was not proved. Therefore ingredients for constituting offence u/s 436 IPC could not be conclusively proved beyond doubt.

In the given facts and circumstances, I further find that the prosecution failed to prove that the occurrence took place in the manner presented by the informant and the complicity of the appellants alleged therein. On the other hand, a reasonable doubt is created as to their complicity in the alleged offence in the backdrop of the long prevailing enmities between the parties. I find that the learned Trial Court without appreciating these aspects convicted the appellants which cannot be sustained under law and is liable to be set aside.

As a result of which after giving them benefit of doubt the appellants Sidheshwar Pandey & Sukhdeo Pandey are acquitted in the instant case. Their bail bonds stand discharged. Accordingly, this appeal is allowed.