JUDGMENT Mukteshwar Prasad, J.
1. This criminal appeal is directed against the judgment and order dated 26.11.1981 passed by the then Additional Sessions Judge, Kanpur in S.T. No. 65/M of 1980 whereby the appellant was convicted under Section 436 I.P.C. and was sentenced to suffer rigorous imprisonment for a period of three years.
2. Briefly stated the facts of the case leading to the prosecution of the appellant were as under:
3. The appellant is owner and landlord of house No. 117/806, P-Block, Kakadeo, P.S. Kalyanpur, Kanpur.
4. PW 3, Smt. Jai Devi, wife of Lala Ram, the informant lived in one of the rooms of the aforesaid house as a tenant along with her husband and other members of the family. PW 7 Radhey Shyam, Dewar of lady also resided as a tenant in adjoining room of the said house. DW 1 Saudan Singh was also tenant of a room adjacent to the room of informant. Smt. Jai Devi was occupying one) room and one Chapper in front of the room. She had a chopper also in front of her room, which was used as a cattle shed and she used to tie her buffalo therein. The lady lived in the aforesaid room for the last three years.
5. On 4.6.1978, the appellant engaged some laborers for digging foundation with a view to raise construction in front of the room of lady. She forbade him and requested to leave some portion, which could be used as a way. She also prayed for allowing her 4-6 days time to vacate the room and postpone the construction work. The landlord took no action and left the place. On the same day, at about 5 p.m. the appellant arrived there and laborers were working. He asked Smt. Jai Devi to remove Chopper (cattle shod) immediately. She replied that her husband was not of residence and removal of chopper was not possible within such a short period. In the meantime, the appellant took out a matchbox and set fire to chopper. The lady raised alarm, which attracted Rauf Khan, Man Singh, Radhey Shyam, Mahadeo and others. PW 4 Sarvesh Kumar, Dewar of the lady was sleeping inside the room. He came out of the room in burnt condition. The clothes and other household articles were also reduced to ashes in the incident. The witnesses made all possible efforts to extinguish the fire. After some time, Fire Brigade arrived and extinguished the fire. Sarvesh Kumar was taken to hospital by Ram Singh and Mansingh. When Radhey Shyam returned home from the hospital, the lady dictated a report to him and F.I.R. was lodged at the Police Station Kalyanpur on the same day at 8.25 p.m. and a case was registered at crime No. 250 under Section 436 I.P.C.
6. The injuries of Sarvesh Kumar were examined by PW 5 Dr. C.K. Singh, Medical Officer of U.H.M. Hospital, Kanpur, who found bum injuries on his head, neck, face and ba6k. There were burn injuries on right and left thigh also.
7. The case was investigated as usual by PW 7 S.I. K.K. Sharma. He interrogated Ram Singh, Radhey Shyam, Smt. Jai Devi Sarvesh Kumar and others and after inspecting the scene of incident prepared site plan collected ashes and prepared Fard-recovery. After completing investigation, he submitted charge sheet against the appellant.
8. After committal of the case, Pratap Narain was charged under Section 436 I.P.C. on 29.8.1981 to which he pleaded not guilty and claimed trial.
9. In order to substantiate its accusations, the prosecution examined seven witnesses in all. They are PW 1 Ram Singh, PW 2 Radhey Shyam, PW 3 Smt. Jai Devi, informant and eye witness, PW-4 Sarvesh Kumar, Dewar of the informant and who sustained burn injuries, PW 5 Dr. C.K. Sharma, who examined the injuries of Sarvesh Kumar on 4.6.1978 at, 6.20 p.m. PW 6, H.C. Jugraj Singh who prepared Chik report and proved entries in the G.D. and PW 7 S.I. K.K. Sharma is investigating Officer of the case.
10. The appellant in his statement under Section 313 Cr.P.C. admitted that ho was landlord of the house in question and foundation was being dug leaving the portion lying in front of the door of informant. He totally denied all the accusations leveled against him and pleaded his false implication in the case on account of enmity. According to him, altercation took place between him and the lady. When he did not accept the request of the lady, he was falsely implicated, He examined his tenant Saudari Singh in his defence.
11. After a close scrutiny of the evidence on record led by the parties and considering submissions made on their behalf, learned Judge found the accused guilty for committing mischief by setting lire to chopper. The' accused was, therefore, convicted and sentenced, as mentioned above.
12. I have heard learned counsel for the appellant, learned A.G.A. and perused the oral as well as documentary evidence on record also The main contention of learned counsel for the appellant is that charge under Section 436 I.P.C. should not have been framed by the court below and court below erred in convicting the appellant under Section 436 I.P.C. It was further submitted that there was no altercation in the morning between the landlord and informant when laborers arrived there for digging the foundation. Therefore, was no sense in burning the chopper by the appellant who is admittedly landlord and no independent witness of the locality came forward to support the prosecution version. The appellant was falsely implicated at the instance of Lala Ram, husband of the informant who was serving as a Home guard In the month of June, 1978. The prosecution failed to establish its case beyond reasonable doubt by reliable and convincing evidence; Consequently, the appeal must be allowed and appellant deserves acquittal.
13. On the other hand, learned counsel for the State has supported the impugned judgment and contended that the court below rightly convicted the appellant relying on the solitary testimony of the lady which finds corroboration by medical evidence and circumstances of the case.
14. I have considered the arguments advanced on behalf of the parties and scrutinized the evidence with caution, Admittedly, the appellant was landlord of the room In which the informant and her family resided. He was owner of chopper also, which was burnt and reduced to ashes in the course of incident.
15. So far as prosecution evidence is concerned, there is solitary testimony of Smt. Jai Devi, holding the appellant responsible for committing mischief by setting fire to her chopper. PW 1 Ram Singh testified that he look Sarvesh Kumar to the hospital on 4.6.1978 and got his injuries examined. PW 2 Radhey Shyam who is admittedly Dewar of the informant was occupying a room quite adjacent to the room of Smt. Jai Devi. He claimed to have arrived at the scene of occurrence on hearing the hue and cry raised by Smt. Jai Devi. He saw the appellant standing near the chapper but did not see him setting tire. It is noteworthy that witness stayed there for 5-10 minutes and applellant staued there for 24 minutes after his arrival. He, however, put no question to the appellant as to who committed the mischief, This conduct of Radhey Shyam who is closely related to Lady does not appear to be natural. He was required to make query from the appellant as to who committed this mischief. The witness further admitted in his cross-examination that Smt. Jai Devi used to prepare meal in the chopper adjacent to her room. The witness also admitted that 11-12 tenants resided in the house in question. PW 4 Sarvesh Kumar admitted that her brother Lala Ram was a home guard in June 1978 and was attached to Police Stations Kalyanpur and Swaroop Nagar. He too admittedly did not S00 the appellant committing the mischief. PW 5 Dr. C.K. Singh, PW 6 Jugraj Singh and PW 7 S.I. K.K. Sharma are formal witnesses.
16. I find that PW 3 Smt. Jai Devi is Solitary witness who supported the prosecution story and stated in clear words that on the impugned date at about 5.00 p.m. the appellant asked her to remove the chopper when she expressed her inability to do so, then and there, the appellant used abusive language and asked her to remove chopper, failing which he would set 'fire and committed mischief by setting fire to the chapper. She asserted that on hearing her cry, Radhey Shyam, Mahadeo and Ram Singh arrived there immediately and tried to extinguish the fire. It is strange that witnesses made no effort to apprehend the appellant on the spot. The lady admitted in her examination-in-chief that nothing happened In the morning when the laborers arrived there at about 8.00 a.m. and started digging foundation. Admittedly, Smt. Jai Devi made no efforts to extinguish the fire and she sustained no burn injury in the course of occurrence. It has come in the evidence of lady that no Incident or altercation took place. In the morning when laborers started digging foundation and landlord left the place. In this view of the matter, this statement of the lady does not inspire confidence that landlord himself committed mischief by setting fire to her chopper. This statement does not stand to reason that when the lady was willing to vacate her room within 4-5 days then what was hurry. The landlord could wait for about a week. No independent witness of the locality appeared in the witness box to corroborate the testimony of the informant. Even her Dewar Radhey Shyam did not say even a single word regarding complicity of the appellant in the crime except that ho was standing there. Had the appellant been responsible for committing the mischief, he must have left the scene of incident and run away. There was no sense in standing there after burning the chopper. He could be manhandled by neighbours / witnesses after the incident.
17. So far as contention of learned counsel for the appellant is concerned that appellant was wrongly charged under Section 436 I.P.C. this argument of learned counsel for the appellant is devoid of substance, Smt. Jai Devi admitted In her cross-examination that household articles were reduced to ashes as a result of fire. It means that chapper In question was used for custody of articles also. Therefore, the court below committed no error in framing charge under Section 436 I.P.C.
18. Besides, the aforesaid infirmities in the prosecution evidence, the appellant examined his tenant Saudan Singh, who admittedly resided in a room adjacent to the room of lady. He too ruled out involvement of the appellant in the offence in question. On perusal of the written report, I find that Smt. Jai Devi has mentioned in the first line of her report that i her husband Lala Ram was employed In J.K. Cattoh Mills Contrary to this, Smt. Jai Devi and her Dewar, Sarvesh, admitted in clear words that Lala Ram was a Home Guard attached to Police Stations Kalyanpur and Swaroop Nagar.
19. In view of the aforesaid analysis and scrutiny of the evidence, I have arrived at the conclusion that the court below committed error in appraisal of the evidence on record. It is true that an accused may be convicted on the sole testimony of a witness provided his evidence is found to be trustworthy and above board. But, in the present case, Smt. Jai Devi did not come with clean hands and did not speak truth.
20. The prosecution no doubt succeeded in proving that the chopper was burnt in the course of the incident. But, it failed to prove the complicity of the appellant by reliable and convincing evidence. It is, therefore, held that the appellant deserves acquittal and his conviction is liable to be set aside.
21. The appeal is allowed. The conviction and sentence recorded against the appellant are hereby set aside and he is acquitted. The appellant is on bail, He need not surrender. His bail bonds are cancelled and sureties are discharged.