Udat Singh and Ors. vs State of U.P.

G. S. N. Triphthi, J.—The Additional Sessions Judge, Chamoli (Garhwal) vide his judgment dated 1181979 passed in Sessions Trial No. 55 of 1974, State v. Udat Singh and others, convicted the accused Chandra Singh under Section 436, I.P.C. and sentenced to undergo five years R. I. Accused Benchan Singh was convicted under Section 436/34, I.P.C. and sentenced to undergo two years R. I. and a fine of Rs. 1000 and in default of payment of fine to further one year''s R. I. Accused Udat Singh was convicted under Section 436/34, I.P.C and sentenced to imprisonment till the rising of the Court and to a fine of Rs. 500 only. In default of payment of fine he was ordered to undergo three months'' simple imprisonment. Accused Smt. Surji Devi who happened to be the wife of Chandra Singh accused, was acquitted from the charges.

The convicted accused have filed this appeal. The State has not filed any appeal against the order of acquittal passed behavior of Smt. Surji Devi.

The prosecution case started on the basis of First Information Report dated 8 51974 lodged at 16.15. p.m. by Shyam Singh, PW 1. He has alleged that his residential house measuring 22 had two portions. one portion he was residing along with his wife and children and in the other portion he used to tether his cattle head and also he conducted his business as a goldsmith. On 851974 at about 11 a.m. the accused Chandra Singh, Bachan Singh and Udat Singh along with Smt. Surji Devi arrived all sudden at his house and threatened him and his family members. They asked him to vacate the house otherwise they would set it to fire. The complainant, his wife and children as well as cattle vacated the house. Meanwhilethe accused Bachan Singh took out a match box from his pocket and handed it over to the accused Chandra Singh and Chandra Singh set fire to the thatched house of the complainant. The house was made of ''Khar'' (a type of grass). Chandra Singh set fire to this house of the complainant in which all his household goods, ornaments etc. were kept. Manwar Singh was also present at that time and he had witnessed the occurrence.

The case was registered at the Police Station at 16.12 p.m. On the same day the investigation was started by Patwari, Sri Kunwar Singh (PW 4). He visited the spot and prepared a site plan (Ext. Ka4), He exercises police powers in the hill districts. He reached the spot and saw the house of the complainant completely burnt and collected the samples of semiburnt articles and a memo for the same was prepared. He also recorded the statements of the complainant, his wife and the witnesses of the occurrence and some other persons. He arrested the accused Udat Singh from his house and interrogated him and brought him to his chauki. He was then sent to jail. On 1651974 the Patwari came to know that other accused were also likely to be available, hence he raided the houses of accused Bachan Singh and Chandra Singh and arrested them, including the wife of Chandra Singh. The Patwari brought the accused Bachan Singh and Chandra Singh to the chauki and then sent them to jail. On 2451974 he recorded the statements of Manwar Singh and other persons of the village on 25 51974. He interrogated certain residents of village Barab. On 2661974 he concluded his investigation and submitted the chargesheet Ext. Ka5 against the four accused persons.

The prosecution examined Shy am Singh, PW 1, the complainant. He has narrated the entire story, PW 2, Bachan Singh deposed in support of the prosecution. Pratap Singh, PW 3, was the eyewitness. He too has said that he saw that some persons were burning the thatch of the complainant but he could not see and recognise as to who had set fire. PW 4, Kunwar Singh, Patwari is the Investigating Officer. He has proved the investigation conducted by him.

Accused in their statements under Section 313, Cr. P. C. have denied the allegations levelled against them. Accused Udat Singh has said that the complainant is his soninlaw. The complainant resided in the house situated in village Barab. In addition, ho has said that about 7 or 8 years prior to the incident his all four sons separated and he had distributed his property amongst them. Ho had performed the marriage of Manwar Singh. There is no dispute about it. However, Mauwar Singh was asking the accused Udat Singh to give some land to the complainant Shyam Smgh also, but he had not done so. Therefore Manwar Singh was angry with his father and brothers. He is very close to the complainant and has got a false case launched in order to put pressure upon him to part with his land in favour of the complainant.

Accused Chandra Singh and Bachan Singh are the sons of Udat Singh. They have simply denied the allegations levelled against them. Chandra Singh has said that Manwar Singh was interested in getting some land for the complainant to which the accused were not agreeable. Smt. Surji Devi was not made any additional statement.

The accused have not any evidence.

After perusal of the entire evidence and circumstances of the record the learned Additional Sessions Judge, Chandra, convicted the accused and sentenced them as noted above.

Feeling aggrieved, the accused have filed this appeal.

I hava heard Sri M. S. Negi, learned counsel for the appellants and learned A. G. A. in detail and perused the record carefully. I find that there is no force in this appeal and it deserves to be dismissed, except to the extent that some modification may be made in the sentence awarded to the accused.

The fact that an incident of fire sock place at the house of the complainant is not disputed. It was suggested to PW 1, Shyam Singh in para 16 of his crossexamination that the fire incident took place in his house due to the throwing of burning cigarettes ends at the roof of his house and he has falsely implicated the accused. Apart from this suggestion in the case, we have unchallenged statement of PW 4, Kunwar Singh, I. O. He has said that soon after the incident he went to the spot and saw the complainant''s house burnt to ashes and samples of semi burnt articles were collected by him from the spot. Metal pieces in part were also seen there. All the household goods and other articles were also scattered in semiburnt stage. He collected some pieces of them and prepared memo for them. PW 3, Pratap Singh, although declared hostile, also supported the projection case of mischief by fire. He was not crossexamined by the accused on this point.

Similarly statements of PW 1, Shyam Singh and PW 2, Bachan Singh on the factum of incident of fire have not been challenged. Thus, the prosecution story has been established that on 851974 at about 11 a.m. an incident of fire took place in which the complainant''s house was burnt and his household goods were totally damaged causing a loss of more than Rs. 10,000.

The question is as to whether these accused participated in the crime. The incident took place at about 11 a.m. First Information Report was lodged on the same day at 4.15 p.m. after negotiating a distance five miles. It is a matter of common knowledge that after a fire incident, salvaging process starts as far as possible. The mental grief and agency caused to the complainant and his family members can be easily assessed. One could not rise like a machine and rush to the Police Station without collecting pieces of the goods and consoling his family members. Hence Fist Information Report was lodged without any loss of time. Clearly there was no time available to the complainant to cook up a false case. Hence this First Information Report is a very valuable piece of corroborative evidence in the armory of the prosecution.

Another beauty of the First Information Report is that it contains every thing upon which the prosecution case has been build up i. e. the date, time and place of incident, the names of accused, roles played by them, list of the lost articles etc. It also contains a brief description of the articles lost and semiburnt. Therefore, this First Information Report is a variable asset to the prosecution.

Now we have to see as to whether the accused actually participated in this crime. For that I find that the complainant is a reliable witness. He had no animus to falsely implicate the accused. The complainant is the real soninlaw of accused Udat Singh and Smt. Surji Devi (acquitted) and real brotherinlaw of the accused Chandra Singh and Bachan Singh, Marriage with wife of the complainant Smt. Pavitra in the noncustomary manner took place about 13 years ago. It is quite likely that this marriage might not have been liked by the accused but there is no evidence to prove that during these 13 years there was any bitter enmity between two families and the complainant could have been persuaded to launch a false case after 13 years. In the crossexamination also no such enmity has not been extracted. The complainant says in para 8 of the crossexamination that his wife Smt. Pavitra was not married earlier but she has not been living with himas his wife for over 13 years, although the formal marriage has not taken place. They have children also. He himself was married twice earlier. Smt. Pavitra was his third wife. In Para 9 in crossexamination he says that he had agricultural holdings in the village Gabani. Manwar Singh is the real brotherinlaw or the complainant and son of the accused Udat Singh. He was married with the daughter of Bacban Singh, PW 2, but in that marriage the accused did not participate. But as observed earlier, Udat Singh accused has told under Section 313, Cr. P. C. that in the marriage of Manwar Singh he had given money and also ornaments of his wife. So it appears that Manwar Singh was married with the active cooperation and consent of the complainant. May be the accused might not have been happy with this marriage. But this also does not persuade me to disbelieve the statement of the complainant that the accused would be falsely implicated by the complainant and Manwar Singh. Rather it seems that active cooperation of the complainant in the marriage of Manwar Singh was not realised by the accused, that is why they did not participate in the postmarriage feast. After all Manwar Singh was the son of the accused Udat Singh and as a man of old school, he thought that it was his right to arrange the marriage of his son at a place he thought best. The involvement of the complainant in the marriage of Manwar Singh was thus not liked by the accused. Manwar Singh was better disposed towards the complainant, therefore he pleaded the complainant''s case that the accused should part with some land in favour of complainant and his wife. This was a request only. The accused might not have agreed. But that is not sufficient for the complainant to falsely launch a case under Section 436, I. P. C. alleging it to be a broad day incident against his close relations. Nay by implicating the accused in such a false case, the complainant could not have obtained the property from the accused. It was bound to counterproductive. It has been so proved that the accused have not parted with an inch of land in favour of the complainant so far, therefore, the argument of the leaned counsel based of the suggestion made in the lower Court. That for getting as share of in the property of the accused a false case has been launched by the complainant is not acceptable to me. I do not find this contention advanced by the learned counsel for the complainant, even natural. I accordingly reject this theory.

The result of this discussion is that the solitary statement of the complainant in such circumstances is sufficient for conviction of the accused P. W. 2, Bachan Singh also gives rebuts support to the statement of the complainant in all material particulars. Learned Lower Court has rightly come to the conclusion that the accused had a motive to teach the complainant .I lesson for his interfering unduly in the family affairs of the accused relating to the marriage of Manwar Singh.

The complainant has clearly said that the accused came and asked him to remove the goods from inside the house, otherwise they put the house to fire. While the complainant started removing his articles the accused Chandra Singh set fire to the house.

In his examination nothing material has come out on the basis of which his statement can be ignored. Minor contradiction as to whether this point was not mentioned in the First Information Report or under Section 161, Cr. P. C. or not, whether all the accused came together and fire incident took place and in which sequence etc., will not matter. The witnesses were in a position to identify the culprits unmistakably as they wereknown persons and came very close to the witnesses while committing this mischief as it was a broad day incident. The accused had first asked the complainant to remove his goods including cattle. There was no difficulty in correctly seeing their performance. The complainant nab denied that it was a sudden incident to fire due to cigarette ends and thus I find that only complainant, Shyam Singh''s testimony is sufficient for conviction.

PW 2, Bachan Singh resides nearby the place where the occurrence took place. He has said that the complainant is the real soninlaw of Udat Singh. He was residing in his own house. While the witness was cutting his crops about 18 furlong away, he saw the incident at the house of the complainant clearly from that place. The accused Udat Singh asked Shyam Singh to set fire to the house of the complainant and the obedient son performed the job without any loss of time. He further says that the complainant was all along present when the incident of fire took place. He saw the accused committing this mischief. He denies that he had any enmity with accused. No litigation between them took place, therefore he is an independent witnessHe further in para 3 says that he asked the accused not to do this mischief but they did not relent. He did not come very close due to fear of the accused This way find that this witness is quite independent and reliable. He is related to the accused very closely.

PW 3, Pratap Singh has not named the accused as culprits. However, he has said that the incident took place at about 11 a. m., while cutting crops, he did not see the accused setting fire. On this point that was a broad day light incident, his statement has not been challenged. He admits all the sons of accused reside separately and Udat Singh has divided amongst all the four sons his plots. This statement of the witness has gone unchallenged. Not only this even the accused Udat Singh says that he had divided his property amongst all his sons. Then the question of the complainant claiming the land only from Udat Singh did not arise. If he wanted some property from Udat Singh, he should have asked it from all the four sons of Udat Singh, because the property was divided amongst all the four sons of Udat Singh. This shows that the defence theory is false and unreliable.

This way I find that the prosecution has proved this case against the accused beyond a shadow of reasonable doubt.

Now the question of the sentence arises. On the date of the incident the accused Udat Singh was aged about 82 years. Other two accused namely, Bachan Singh and Chandra Singh had also crossed 50 years. The occurrence took place on 851974 and more than 20 years have passed. There is no evidence that the accused had been previous convicts or they have repeat such an act. So, I find that six months''. R.I. shall meet the ends of justice in a charge under Section 436/34, I. P. C. otherwise the appeal has no force.

The appeal is substantiality dismissed. The order of conviction passed by the learned Additional Sessions Judge is made absolute. However, sentence is modified and reduced to six months. R.I. only under S. 436/34, IPC.

The accused are on bail. Their bail bonds and security bonds are cancelled. They shall be taken into the custody by the Chief Judicial Magistrate, Chamoli forthwith, who shall also submit the compliance report within a month to this Court.