Judgment reserved on 14.3.2018 Judgment delivered on 24.4.2018
Court No. 28
Case :- CRIMINAL APPEAL No. - 65 of 2004 Appellant :- Ram Ker & Others Respondent :- State Of U.P.
Counsel for Appellant :- Sharad Srivastava,U.S.Chauhan Counsel for Respondent :- Govt. Advocate
Hon'ble Umesh Chandra Tripathi,J.
1. Heard Sri Sharad Srivastava, learned counsel for the appellants and Sri L.D. Rajbhar, learned A.G.A., for the State.
2. This appeal is directed against the judgment and order dated 19.12.2003 passed by learned Additional Sessions Judge, Fast Track Court No. 1, Ghazipur in S.T. No. 238 of 1997 (State Vs. Ram Ker and others) whereby accused/appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan were convicted for the offence punishable under Sections 143, 436/149, 504, 506 Indian Penal Code (hereinafter referred to as “IPC”) and sentenced to:-
(i) rigorous imprisonment for a period six months under Section 143 IPC,
(ii) rigorous imprisonment for a period of ten years under Section 436/149 IPC,
(iii) simple imprisonment for a period of six months under Section 504 IPC and
(iv) rigorous imprisonment for a period of one year under Section 506 IPC.
3. All these sentences were directed to run concurrently.
4. Brief facts of the prosecution case are that on 10/11-11-1996 at about 2:00 AM in night appellants/accused Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan reached near the hut of informant (Shivpujan Rajbhar) and they ablaze his hut.
When informant came out of his hut, they abused and threatened to set him on fire. Informant identified them in light of fire. After that appellants went near hut of his brother Mushafir Rajbhar. Appellant/accused Rampher sprayed kerosene oil on his hut and appellant Ghura lighted fire with the help of match stick. On alarm being raised by informant and his brother Mushafir, villagers Sewak Chauhan, Dwarika and many others arrived on the spot and identified the appellants who were running away. Due to fire informant's hut and domestic articles and his brothers hut, engine, atta chakki, hen etc., were burnt.
5. On written information of Informant Shivpujan Rajbhar, a first information report at case crime no. 191 of 1996 has been lodged on 11.11.1996 at 3:40 AM against accused-appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan at Police Station Kasmabad, District Ghazipur. After investigation, police has submitted charge-sheet against appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan under Sections 143, 436, 504, 506, 427 IPC. On the same day, Investigating Officer has collected the burnt articles and prepared recovery memo. Burnt hen was examined by medical officer.
6. Learned Trial Court has framed charge under Sections 143, 436/149, 504, 506 IPC against appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan and explained charge to them. They pleaded not guilty and claimed to be tried.
7. To substantiate charge against accused appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan, prosecution has examined PW-1 Shivpujan, PW-2 Musafir as witnesses of fact and PW-3 Constable Ramadhar, PW-4 Sub Inspector Mukteshwar Tiwari, PW-5 Dr. Om Prakash Gupta as formal witnesses.
8. After closure of prosecution evidence, statements under Section 313 Code of Criminal Procedure of the accused/appellants were recorded wherein they pleaded their innocence and stated that witnesses have deposed falsely against them due to enmity.
9. In defence, Surya Nath Ram was examined as D.W. 1.
10. Upon detailed consideration of evidence on record, learned Trial Court found the guilt of the accused/appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan under Sections 143, 436/149, 504, 506 IPC is proved beyond reasonable doubt.
11. Learned counsel for the appellants contended that no independent witness has been examined from the prosecution side and the appellants have been falsely implicated in this case due to enmity. Prosecution has failed to prove the guilt of appellants beyond reasonable doubt, even though the trial court has passed the impugned order of conviction without properly appreciating the evidence available on record.
12. Learned A.G.A., has contended that there is no any illegality or infirmity in the order passed by the learned Trial Court and as such the appeal is liable to be dismissed.
13. PW-1 Shivpujan has admitted this fact that accused- appellant Rampher and Ghura have also put their hut alongwith his hut. All huts including huts of his brother and informant were constructed on the boundary of pond on gram sabha land. From the fire of huts belonging to informant and his brother, huts of appellants might ignited. No person of ordinary prudence will take risk of mischief to his own properties by igniting fire at his neighbour's hut.
14. PW-1 Shivpujan further admitted that their children and family members lived at a residence situated in village in night. Only he and his brother live in their respective huts during night. He further admitted in his cross-examination that before this occurrence, a civil suit was pending in the civil court and presently there is no hut on the place of occurrence. Before 10-12 years, there were huts of several villagers on the place of occurrence. On the day of holika dahan, huts belonging to him and his brother were burnt. In this reference a criminal case was registered against Rajputs' of the village and that criminal case was compromised with the Rajputs because they surrendered their right over the land and it was resolved to give the land to informant and his brother.
15. From these facts, it is evident that informant and his brother have constructed their huts on the gaon sabha land and presently they are not in possession of the land in dispute. Before this occurrence, informant and his brother has lodged the first information report against Rajputs of village for committing mischief by fire in their huts and criminal case was compounded between them.
16. From his statement, it is also evident that appellants were also claiming their right on the disputed land. Informant PW-1 Shivpujan Rajbhar has stated that he had awaken due to heat of fire coming out from the hut and saw that appellants were standing there. He identified the appellants, in the light of fire. Thereafter, appellants flew in north direction and reached near hut of his brother Musafir. Accused Rampher was pouring Kerosene oil on his brother's hut. Accused Ghura ignited fire with a match stick. Accused has chosen night hours to commit the crime. This shows that they were intended to conceal their identity. After igniting fire by match stick, some time will take to spread fire. In between this period, accused, who were intended to conceal their identity, will easily flee from the spot and it will be least possible for informant Shivpujan to identify them. After setting on fire the hut of informant, accused will not wait till awakening of informant and after awakening of informant, they will go and ablaze hut of informant's brother. This is not natural conduct. As accused intended to conceal their identity, it was reasonable for them to go on the spot, pour kerosene oil on both huts of informant and his brother, ablaze their huts and ran away immediately from spot. Accused were seven in number, some accused may ablaze informant's house and at the same time, other accused-appellants may ablaze his brother's hut. As per prosecution version, after setting on fire, informant's hut, accused had set on fire his brother's hut. It was natural that Musafir will awake only after his hut was set on fire. It was least possible for him to identify the accused who had set on fire, hut of informant Shivpujan. PW-1 Shivpujan further admitted that he went at the hut of his brother, his brother was standing there and his hut was burning. This means that when informant reached at his brother's hut, the same was burning. Therefore, it was not possible for him to identify person who set on fire his brother's hut. PW-1 Shivpujan further stated that after burning of these huts, accused fled away towards north side. He admitted that there were huts of accused Ghura and Ramker near his hut. Therefore, there was no any reason for the appellants to flee away in north side after ablazing the hut, accused may immediately rushed into their own huts.
17. PW-2 Musafir has stated in his examination-in-chief that he awoke on alarm being raised by his brother Shivpujan. He came out from his hut alongwith his wife and saw the burning hut of his brother Shivpujan. He identified the accused in the light of fire. In his cross-examination, he made a contrary statement and stated that on alarm, he came on the spot, the hut of his brother was burning from all sides. At that time he has not seen his brother Shivpujan there. He further stated that he could not see whether accused were armed with weapons. He further stated that accused Rampher had sprayed kerosene oil upto 10 minutes. This is not a natural statement. Contrary to statement of Shivpujan that for the first time, accused belonging to Rajput community have set on fire their huts, he stated that for the first time, accused belonging to Rajbhar community have set on fire their huts.
18. From the statement of both the witnesses of facts, it is evident that statement of Shivpujan and Musafir is not natural and they are not reliable witnesses. Due to land dispute, possibility of false report and deposition against the appellants cannot be ruled out.
19. In view of above, it is not appropriate to convict the appellants on the basis of statements of PW-1 Shivpujan and PW-2 Musafir. The appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan deserve to be given benefit of doubts.
20. The trial court while recording conviction against the appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained.
21. The appeal is accordingly allowed. Conviction of appellants Ram Ker, Lahdu, Ghura, Ram Soch, Mannu, Sati Ram and Ram Karan under Sections 143, 436/149, 504, 506 of IPC is set aside and they are acquitted.
22. The appellants are on bail. They need not surrender. Their bail bonds stand cancelled.
23. Office is directed to send a certified copy of this order to Sessions Judge, Ghazipur for its compliance. Office is further directed to send back the lower court record.
Order Date :- 24.4.2018 Jaswant