Surat Singh and others vs State of Madhya Pradesh

N.K. Gupta, J

This criminal appeal is preferred by the appellants being aggrieved by the judgment and order of sentence dated 22/10/1997 passed by the Sessions Judge, Sagar in ST No. 72/1997, whereby the appellants were convicted for commission of offence punishable u/s 436 or 436/34 of IPC and sentenced for two years'' rigorous imprisonment. The appellant No. 4 has expired during the pendency of this appeal, therefore his name was deleted from the array of the appellants, because his appeal was abated.

The prosecution''s case, in short, is that on 20.10.1995 the complainant Ram Kumar came to his house situated at Village Dungariya (Police Station Deori District Sagar). At about 7:30 PM the appellants went to his house and called him to assault. The appellants were angry with the complainant because due to his information some liquor of the appellants was seized by the police. When the appellants went to assault the complainant, he went inside the house and closed the door. Thereafter the appellant Surat Singh told to others to set the house on fire. Due to fear, the complainant rushed to the Police Station Deori and lodged an FIR in the Police Station. There was no transportation arrangement, and therefore he could not come back to village Dungariya in the night itself, but he came back on 21.10.1995 in the noon. When he reached to his house, he found that his house was burnt. His mother Rewa Bai told him that on 20.10.1995 at about 8:30 PM in the night the appellants set the house of the complainant on fire and ran away. The complainant again went to the Police Station Deori and lodged an FIR Ex. P-1 about the incident. He had also mentioned that the witnesses Maharaj Singh (PW-5), Veer Singh (PW-3) and Shri Singh (PW-8) prohibited the appellants not to make any arson, but the appellants completed their crime. The police came to the spot and assessed the damage caused to the complainant. The statements of various witnesses were recorded. After due investigation, a charge sheet was filed before the JMFC Deori, who committed the case to the Sessions Court, Sagar.

The appellants-accused abjured their guilt. They did not take any specific plea but they have stated that they were falsely implicated in the matter. In this connection, an affidavit of one Shri Singh (PW-8) was also filed which was in favour of the appellants that they did not make any arson in the house of the complainant. However, except filing of that affidavit Ex. D-2, no defence evidence was adduced.

The learned Sessions Judge after considering the evidence adduced by the parties convicted the appellants No. 2 and 3 for commission of offence punishable u/s 436 of IPC, whereas remaining appellants were convicted for the offence punishable u/s 436/34 of IPC and sentenced as mentioned above.

I have heard the Learned Counsel for the parties.

The Learned Counsel for the appellants has submitted that the complainant Raj Kumar was not the eye-witness, whereas there is a lot of contradictions in the evidence of various eye-witnesses. There are contradictions between their statements in the Court and their case diary statements. The FIR was lodged with a delay of at least one day. Under such circumstances, it would be apparent that the name of the culprit was not known to the complainant, and therefore on the basis of suspicion, he had lodged an FIR in delayed manner. In the alternate, it is submitted that the appellants have faced the trial and appeal for last 15 years, and therefore they would not be sent to the jail again. In this context, reliance is placed upon the judgment passed by the Single Bench of this Court in the case of "Moorat Singh Vs. State of MP", [2003(5) MPLJ 239].

On the other hand, Learned Counsel for the State has argued in support of the impugned judgment on the ground that conviction and sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court.

After considering the submissions made by the Learned Counsel for the parties, it is to be considered that whether the appellants can be convicted for the offence u/s 436 of IPC? And whether the sentence directed against the appellants can be reduced?

Raj Kumar (PW-2) was the complainant in the case, who had lodged the FIR Ex. P-1 on the third day of the incident. In that FIR he had stated that a small quarrel took place at 7:30 PM on the same day and the appellants were bent upon to assault the complainant, therefore he ran away from the spot and the incident of arson took place at 8:30 PM in the night. The names of the appellants were mentioned in the FIR, because they took a quarrel with the complainant soon before the incident. Under such circumstances, it is to be seen as to whether the appellants set the house on fire in continuation of the previous quarrel or not.

Raj Kumar (PW-2) has stated that when the appellants ran behind him to assault him, then he went inside the house and closed the door. At that time one of the appellants was provoking others to set the house on fire. Simultaneously, the complainant also admitted that he rushed to the Police Station Deori and thereafter his house was set on fire. If the appellants were present before the house of the complainant, then the complainant could not leave his house and the appellants would have assaulted him. But it is clear that he safely went to the Police Station Deori, it means that between the two incidents, there was a gap. The appellants went back and thereafter when there was nobody in front of the house of complainant Raj Kumar, the complainant went to the Police Station Deori. Under such circumstances, both the incident did not take place in continuation.

Witness Maharaj Singh (PW-5) has stated that he saw the complainant Raj Kumar, who was running towards the Police Station Deori, but none of the appellants went behind him. The statement given by the witness Maharaj Singh (PW-5) appears to be unnatural. If the appellants were gathered to assault the complainant Raj Kumar, then certainly after looking him they should have chased him to assault. Under such circumstances, it would be apparent that when the complainant Raj Kumar went to the Police Station Deori, there was nobody including the appellants before his house.

The complainant Raj Kumar did not submit the report which he had lodged on 20.10.1995. He has stated that he remained in the Police Station in the night, because his report could not be written, whereas in his case diary statement as well as in the FIR Ex. P-1 he had mentioned that he could not return to his village in the night due to non-availability of any transport arrangement. Under such circumstances, it is highly doubtful that Raj Kumar went to the Police Station Deori to lodge an FIR on that day. If he had lodged the FIR against the appellants, then there was no problem to the complainant to annex the FIR with the present case. Under such circumstances, it is possible that the complainant Raj Kumar has cooked the story of the previous quarrel to make the grave case against the appellants, whereas no witness has proved that the appellants came to the house of the complainant and tried to assault him. The witnesses Veer Singh, Hari Charan, Maharaj Singh, Ram Narayan and Shri Singh have stated that a quarrel took place between the appellants and the victim Raj Kumar and thereafter the appellants set the house on fire. But it would be apparent that the witnesses Hari Charan, Maharaj Singh and Ram Narayan had enmity with the appellants. One case of Sections 107/116 of Cr.P.C. was prosecuted against these witnesses due to the report lodged by the appellants. It is also apparent that the alleged incident of quarrel and the incident of arson took place with a gap of one hour and in that gap the appellants were not present at the spot. Therefore, it would be clear that the witnesses Hari Charan, Maharaj Singh and Ram Narayan are telling a falsehood that the appellants set the house of the complainant Raj Kumar on fire soon after the quarrel. Actually they reached to the spot when the house was already burning.

Hari Charan, Maharaj Singh and Ram Narayan have stated that the arson was committed by the appellants Dayali and Komal Singh, but the witness Shri Singh (PW-8) has stated that it was the appellant Komal Singh who burnt the bundle of grass with the help of a match box and thereafter that bundle of grass was thrown on the house of the victim Raj Kumar. He did not mention the name of appellant Dayali. If the eye-witnesses were present at the time of arson, then how the witness Shri Singh could not see that the appellant Dayali helping the appellant Komal Singh in making that arson. Such a contradiction indicates that they reached to the spot after flames were visible to them. They did not see anyone who set the house on fire.

Ram Narayan (PW-6), father of the complainant Raj Kumar had also suffered due to that arson, and therefore for this second crime either he could go to the Police Station to lodge an FIR or could send his another son to the Police Station to lodge an FIR about the arson, but nobody lodged the FIR either by witness Ram Narayan or his sons soon after the incident. They could send anyone to the Police Station on the next day i.e. on 21.10.1995. But it is apparent that nobody was sent to the Police Station on the next day of the incident. Admittedly, the complainant Raj Kumar (PW-2) came to the village on 21.10.1995 at about 12 to 1:00 PM, then he could go back to the Police Station Deori to lodge an FIR against the appellants, but the FIR was lodged on 22.10.1995 at about 1:20 PM, and therefore it was lodged with a delay of at least 40 hours. The delay in lodging the FIR clearly indicates that a story of incident of assault was created to implicate the appellants in that crime. Actually nobody could see that who set the house of the complainant on fire. In this context, the witness Shri Singh (PW-8) has admitted in para 7 of his cross examination that when he reached to the house of complainant Raj Kumar, there was nobody present in the house from the family of Raj Kumar including the Raj Kumar himself. Under such circumstances, it would be apparent that no family member of Raj Kumar was present at the spot at that time when the fire was initiated in the house. Similarly, Shri Singh (PW-8) was the first person to reach the spot, who could not see any of the appellants at the spot, therefore the witnesses who came after the witness Shri Singh (PW-8) could not see the appellants at the spot and they are telling a falsehood.

On the basis of the aforesaid discussion, it is apparent that nobody could see the actual culprit who set the house of the complainant Raj Kumar on fire and after making deliberations and consultations with so many persons, a story was cooked and the FIR was lodged with a delay of 40 hours. Under such circumstances, the delay caused in lodging the FIR is fatal, and therefore looking to the contradictory evidence of the witnesses, the entire prosecution story goes away. It is not proved beyond reasonable doubt that any incident of quarrel took place between the complainant and the appellants. It is not proved beyond doubt that the appellants set the house of the complainant on fire. Under such circumstances, the appellants cannot be convicted for the offence punishable u/s 436 or for any inferior offence of the similar nature either directly or with the help of Section 34 of IPC. The trial Court has erred in convicting the appellants for the aforesaid offence.

Since the conviction directed against the appellants by the trial Court is not maintainable, therefore there is no need to discuss about the sentence.

On the basis of the aforesaid discussion, the appeal of the appellants deserves to be allowed. Consequently, it is allowed. The conviction and sentence directed by the trial Court vide its judgment dated 22.10.1997 in ST No. 72/1997 are hereby set aside. The appellants are acquitted from all the charges appended against them.

At present the appellants are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged.

A copy of this judgment be sent to the concerned trial Court with its record for information. Record of the Special Case No. 72/1997 be also sent back to the Special Court, Sagar, because it was sent by the Special Court due to confusion.