Rakesh And Others vs State
2023 Latest Caselaw 16976 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:134643
 
AFR	       
 
Reserved
 
Court No. - 81
 

 
Case :- CRIMINAL REVISION No. - 423 of 1993
 
Revisionist :- Rakesh and others
 
Opposite Party :- State
 
Counsel for Revisionist :- V.K. Sharma,Surendra Kumar Tripathi,Sushil Kumar Chaturvedi
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble Umesh Chandra Sharma,J.

1. This criminal revision has been preferred against the judgment and order of conviction and sentencing dated 29.10.1992 passed by the Assistant Sessions Judge-IV, Agra in Sessions Trial No.166 of 1992 (State Vs. Rakesh and others), under Sections 149, 436, 427, 452 IPC as well as the judgment and order dated 27.03.1993 passed by Additional Sessions Judge-IV, Agra in Criminal Appeal No.61 of 1992 (Rakesh and others Vs. State of UP). The trial Judge convicted and sentenced all the the accused persons under Section 436 read with Section 149 IPC and sentenced to undergo three and half years rigorous imprisonment each, under Section 452 read with Section 149 IPC for six months rigorous imprisonment each, under Section 427 read with Section 149 IPC they were directed to undergo three months rigorous imprisonment each. It was also directed that all the sentences shall run concurrently.

2. The appeal was partly allowed with regard to accused Veeru and the conviction and sentencing under Section 452 read with Section 149 IPC was also quashed.

3. Being aggrieved by both the order the convicted accused persons have preferred this revision. During the pendency of this revision, accused-revisionist no.6, Kalua had died and this revision in respect of revisionist no.6 has been abated and the same survives in respect of revisionist nos.1 to 5.

4. The revisionists have taken ground that in this case investigating officer (IO) has not been examined, recovery memo is not proved, no independent witness has been examined, the disputed land was a nazul land and the temporary hut installed by the informant was already removed by the Nazul Department/Nagar Maha Palika, site plan has not been proved. Section 436 IPC is not made out as the alleged occurrence is said to have been committed in a hut. Witnesses are highly partitioned witnesses and their statement cannot be relied on and more so their statements are also self-contradictory. PW-2, Banshi husband of the informant is said to have reached on the spot just after the incident. He was a chance witness. Presence of the alleged witnesses is not established. One of the accused Veeru has been exonerated. Hence, the revision be allowed and the impugned judgments and orders of conviction and sentencing passed by the trial court and the appellate court as well be set aside.

5. In brief, facts of the case are that when the informant Smt. Vidyawati was present in her hut situated in Village Jaganpur on 17.04.1988 at about 08:30 a.m. and her husband had gone out of the house, accused Rakesh, Ravi, Veeru, Naubat, Harvir, Kalloo and Kalua alongwith 10-12 persons came at her jhopadi (hut) and directed to vacate the same. She was tying cattle therein. The accused intended to pass through the land of the hut. All the accused persons set the hut on fire which reduced to ashes and her utensils and cash etc. were burnt. Her cattle were united and led to run. The occurrence was witnessed by Natthi, Rajni and some others. There was a loss of Rs.4,000/-. Present FIR was lodged at Police Station New Agra on 17.04.1988 at 10:30 a.m. The Assistant Sessions Judge after recording and appreciating the evidence found all the accused persons guilty and convicted and sentenced them accordingly.

6. The order of the trial court was challenged in the aforementioned criminal appeal which was partly allowed as mentioned above. Being aggrieved this revision has been preferred by the convicts.

7. In this case some witnesses i.e. PW-1, Vidyawati, informant; PW-2, Banshi - husband of the informant; PW-3, Rajni - daughter of the informant; PW-4, Head Constable, Desh Raj Khanna - secondary evidence have been examined.

8. PW-1, Smt. Vidyawati - informant has deposed that on the date and time of occurrence accused persons wanted to vacate the hut when she did not vacate, they set the hut on fire due to which Rs.2,000/-, 17 k.g. grains, 30 k.g. bran (chuni) were burnt. She had lodged FIR. She recognized her thumb impression on the written complaint Ex.Ka-1.

9. PW-2, Banshi has deposed that at the time of occurrence he had gone to distribute milk. As soon as he returned, he saw that his hut was burning and people were running therefrom. According to him, accused persons were recognized when they were running away.

10. PW-3, Rajni has deposed that at the time of incident she was making tea when accused persons came and directed to come out and threatened to put the hut into fire. When she refused, the accused persons set the hut on fire. She and her mother came out due to fire due to which about 70 k.g. grain, 40 k.g. bran and Rs.2,000/- cash, books and two bhagona had been burnt.

11. PW-4, HC, Desh Raj Khanna has proved chik FIR, GD map and charge sheet as secondary evidence. He has proved secondary evidence on the ground that he had worked with SI Rajaram and Jagdish Narayan Sharma and recognizes their writing and signature.

12. The prosecution did not try to summon the formal witnesses and closed the evidence thereafter statement of the accused persons were recorded under Section 313 CrPC in which accused persons averred that the land of the hut belonged to the nazul land. Accused persons had made complaint to the Nagar Maha Palika upon which the hut had already been removed. According to the accused persons at the time of the alleged occurrence there was no hut on the alleged place of occurrence.

13. After hearing the arguments, the accused persons were convicted and sentenced accordingly and the appeal was partly allowed and partly rejected. Hence, this revision has been preferred.

14. Heard learned counsel for the parties and perused the records.

15. This case is decided as under:-

15.1.(i) It is admitted to the prosecution that the land of the alleged hut belonged to nazul land. The prosecution could not produce any evidence of ownership in favour of the informant. There is no denial that after complaint being made by the accused persons the alleged hut was not removed by the Nagar Maha Palika. It is a clear case of the defence that on the complaint of the accused persons Nagar Maha Palika had taken action and had removed the hut and it was not on the spot, therefore, no question arises to set the alleged hut on fire.

15.2. Learned counsel for the revisionists argued that if the alleged hut was there and was set on fire, some photographs or FSL report would have been obtained and burnt articles would have been produced as material exhibits and would have been proved in the Court during the course of trial.

15.3.(ii) PW-2, Banshi was the chance witness. It is not averred as to when he left the house and went for distribution of milk and when he returned.

15.4. Considering the facts and circumstances of the case, it appears that PW-2 was a chance witness and he had not seen the occurrence. He has just repeated the version of his wife and daughter. This conclusion finds support from the fact that he did not make any effort to stop the accused persons and extinguish the fire.

15.5.(iii) According to the prosecution, all the accused persons set the hut on fire but PW-3 Rajni has deposed that only Rakesh had set the hut on fire. Thus there is vast difference between the averments of the complaint, evidence of rest of the witnesses and the evidence of PW-3, Rajni and thus the statement of PW-3 is also self-contradictory. It is not established that accused persons had made up the mind to commit an offence under Section 436 IPC on the place of occurrence. If for the sake of argument the prosecution story is accepted in toto, there is no evidence that rest of the accused persons were knowing that accused Rakesh had any matchstick to lit the fire. According to PW-1 and PW-3 the hut was set on fire before them. In that case they would be knowing as to how and on which method their hut was burnt. Whether any explosive substance was thrown on the hut or only fire was lit by matchstick. It is also nowhere mentioned and there is no evidence that when accused persons set the hut on fire, why they were not prevented by the informant and her daughter. Why no attempt to put off the fire was made and more so when just after the incident husband of the informant had reached on the spot why he had not attempted to extinguish the fire. It has not come into evidence that the informant, her daughter or her husband tried to extinguish the fire and save the hut while they were not forcibly prevented by the accused persons.

15.6.(iv) The trial court and the appellate court has accepted the evidence of the witnesses as gospel truth while they are the family members of the informant. They all were inimical to the accused persons, therefore, the statement of witnesses of fact would not be accepted without careful and cautious scrutiny. In that case their corroboration from other independent evidence was necessary before recording the conviction and sentencing of the revisionists.

16. In Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537; Dahari and others Vs. State of UP, AIR 2013 SC 308; and Shyamal Ghosh Vs. State Of West Bengal, AIR 2012 SC 3539 the Apex Court has held that in such case, Court has to adopt careful approach in analysing and accepting the evidence of such interested witnesses and if the testimony of the related witnesses is otherwise found credible, only then the accused can be convicted on the basis of testimony of such related witness.

17. In this case neither any documentary or material evidence nor evidence of independent witnesses such as Natthi and other persons present on the spot is available on record. The prosecution did not try to examine witnesses Natthi and other persons present on the spot. In such circumstance presumption under Section 114(g) of The Indian Evidence Act, 1872 arises against the prosecution and it would be presumed that the independent witnesses were not ready to tell a lie in favour of the prosecution and the informant. Hence, they were not examined.

18. It is not a case that independent witness were won over by the accused persons, therefore they were not ready to depose against them.

19. It is established from the above discussion that PW-1 to 3 were inimical to the accused persons though enmity of the witnesses with the accused is not a ground to reject their testimony, if on proper scrutiny the testimony of such witnesses is found reliable. However, the possibility of falsely involving some persons in the crime or exaggerating role of some of the accused by such witnesses should be kept in mind. It is not a case that witnesses PW-1 to 3 tried to extinguish the fire. If a house of any person is set on fire he would try his best to save the house. Such hostile act of the informant and the witnesses creates doubt in the mind of the Court that at the time of occurrence there was no such hut, therefore, witnesses did not try to save the same otherwise they would have tried their best to save the hut and they would also have received fire injuries. No fire injury on the person of the witnesses also creates doubt in the mind of the Court about the commission of alleged occurrence by the revisionists.

20. It is also material that if the accused persons had adopted legal recourse regarding removal of the hut and according to them the same was removed by the officials of Nagar Maha Palika why they would try to take law in their hands. Generally it is seen that such arsoning act are done in the night when no one is present in the house but here according to the prosecution accused persons had set the hut on fire in day-light and had also not put masks on their faces to hide their identity. Generally it is seen and it is a human conduct and behaviour that the persons do not commit offence of robbery and arsoning in day-light and if they do so with any familiar person, they hide their faces and try their best to hide their identity. It is noteworthy that PW-1, informant has accepted that she used to tie cattle in the alleged hut.

21. In this case the IO has not been examined. There is no evidence that samples from the place of occurrence or ashes and burnt articles were taken and were sent to FSL. The trial judge has completed mere formalities by recording the evidence of PW-4 who knows nothing about the case, he only recognizes the writing and signature of the concerned SI.

22. In Ratha Jena Vs. State of Orissa, (1986) 1 Crimes 299; Rajwa Kebat Vs. State of Bihar, 1988 CrLJ 1288 it has been held that non-examination of the IO when entail deprivation of an opportunity to show contradiction between a court evidence and his statement recorded under Section 161 CrPC, non-examination of IO is fatal to the prosecution. In Nagina Sharma Vs. State of Bihar, 1991 CrLJ 1195 (Patna) it has been held that non-examination of IO is relevant when the place of occurrence, site plan or other materials and other objective findings are concerned. On account of non-examination of the IO if prejudice is caused to the accused in some matters, then the Court will give benefit of doubt to the accused.

23. In Nagina Sharma (supra) it has also been held that if examination of the IO is very essential and if he is not appearing, the court has power to adopt coercive measures for his appearance as and when it is required.

24. In this case the trial judge has lamented a lot that the IO, SI Rajaram and JN Sharma have not been examined by ADGC and he had not written any application to SSP for their appearance as witness and also did not try to send message for their appearance.

25. According to this Court the trial court has faulted in extending liability upon ADGC for not summoning the IO for their examination. It is duty of the court and power rests in the court to summon the witnesses by adopting proper and coercive method as already narrated by the High Court of Judicature at Patna.

26. The trial Judge neither issued summons or warrants to the IOs nor wrote a letter to the SSP, DGP or DG prosecution. He did not care that material exhibits are not produced in the court and have not been proved, therefore, due to non-examination of the IO and non-production of the independent witnesses and material exhibits the accused revisionists have been prejudiced and it can be very well concluded that no fair trial has been done by the trial court.

27. Sections 435 and 436 IPC are read as under:-

"435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.--Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

436. Mischief by fire or explosive substance with intent to destroy house, etc.--Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

28. From perusal of both the sections it is quite clear that if any damage is caused to any property to the amount of Rs.100/- or upwards the accused shall be punished under Section 435 IPC and if the destruction by fire or any explosive substance has been caused to any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, the accused shall be punished under Section 436 IPC.

29. In this case the informant PW-1 has accepted that she used to tie cattle in the alleged hut, hence according to this Court even if for the sake of argument it is accepted that the offence had been caused by the accused persons, it would not be an offence punishable under Section 436 IPC. More so, if accused persons had permitted to save the cattle and if some materials would also have been kept there, the same would also have been taken out by the informant. It has already been said that no material had been produced during the trial to prove that some grains, bran and money etc. were there.

30. In Jashmero Vs. State of Punjab, 1980 CrLJ (NOC) 46 (P&H) it has been held that a structure made straw and not of bricks and mortar may be considered a building if it has got the necessary furnishings needed for a building such as door bars etc. An ordinary thatched shed resting on bamboos or wooden or brick pillars having no doors etc. cannot be treated as a building within the meaning of the terms used in Section 436 IPC but as the bullocks therein died in consequence of the fire, the accused could be convicted under Section 435 IPC. Here no harm was being caused to any of the cattle to the informant and it has not been proved that any material of the informant had been burnt in the alleged arsoning.

31. On the basis of above discussion, this Court is of the view that the prosecution has not able to prove the case and charge against the accused persons beyond the reasonable doubt. The revisionists are entitled to benefit of doubt and the order of conviction and sentencing passed by the trial court and the appellate court as well are liable to be quashed.

32. Accordingly, this revision succeeds and is allowed. The impugned judgments and orders of conviction and sentencing dated 29.10.1992 and 27.03.1993 passed by the trial court as well as by the appellate court, respectively are quashed.

33. A copy of this order be sent to the court below for necessary compliance, if any.

Order Date :- 5.7.2023

Shahroz

(Umesh Chandra Sharma,J.)