Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.223 of 1989 ***** Against the judgment of conviction and order of sentence dated 28.04.1989 passed by the 1st Additional Sessions Judge, Gopalganj in Sessions Trial No. 25 of 1986/4 of 1986. ========================================================== 1. KAILASH KHAN 2. NAWAL KISHORE KHAN 3. BASDEO KHAN, ALL SONS OF SHIVNATH KHAN 4. PREM SAGAR KHAN 5. TUNTUN KHAN, BOTH SONS OF BISHWANATH KHAN ALL RESIDENTS OF VILAGE BHORE, P.S. BHORE, DISTRICT- GOPALGANJ .... .... Appellants. Versus THE STATE OF BIHAR .... .... Respondent. Appearance : For the Appellants : Mr. Sri Kanhaiya Prasad Singh, Sr. Advocate. Dr. Rajesh Kr. Singh, Advocate. For the Respondent : Ms. Shashi Bala Verma, APP. For the Informant : Mr. Binay Kant Mani Tripathi, Advocate. Mr. Ajay Kumar Mishra, Advocate. ***** CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) ***** Appellants Kailash Khan, Nawal Kishore Khan, Basdeo Khan, Prem Sagar Khan and Tuntun Khan have been convicted in Sessions Trial No. 25 of 1986/4 of 1986 by the learned 1st Additional Sessions Judge, Gopalganj whereby the Patna High Court CR. APP (DB) No.223 of 1989 dt.10-01-2012 2 appellants have been found guilty under [STATUTE] and they each of have been sentenced to undergo R.I. for life under [STATUTE] and R.I. for seven years each under [STATUTE] . The sentences have been ordered to run concurrently. 2. One Jawahar Bind P.W.8, lodged a fardbeyan (Ext.1) leading to formal First Information Report (Ext.2) which resulted in Bhorey P.S. Case No. 31 of 1985 under [STATUTE] . The fardbeyan was recorded by S.I. Nagendra Singh, Officer Incharge of Bhorey Police Station on 14.04.1985 at 9.00 P.M. at Bakharia Siwana in which P.W.8 stated that at preceding 06.30 P.M., while he was cutting wheat crop in the field of Nathuni Nonia as his labourer to the north of his Marai (Palani) he heard sound of crying of ladies on which he came and found the appellants along with 2-3 persons escaping towards south and the informant and others caught hold Nawal Kishore Khan but other appellants succeeded in escaping. It has been further alleged that wife of Ranjan Bind P.W.7 informed that her three Patna High Court CR. APP (DB) No.223 of 1989 dt.10-01-2012 3 years old daughter Dhimali who was sleeping inside the Palani has been burnt on account of Palani being set on fire. Further allegation was that wheat, clothes and other articles were also burnt. The motive of the occurrence alleged in the First Information Report was a proceeding under Section 144 of the Code of Criminal Procedure and later on a proceeding under Section 145 of the Code of Criminal Procedure which was being contested by the appellants on one side and the prosecution party on other side. The First Information Report was investigated into and after investigation the case was found to be true and charge sheet was submitted. On receipt of the charge sheet, cognizance was taken and the case being triable by the court of Sessions was committed to the court of Sessions after observing paraphernalia of the case. The accused persons appeared and charges against them under [STATUTE] were explained. They pleaded their innocence and so the trial proceeded. 3. The defence of the accused persons was that the place of occurrence Palani belongs to them since decades and in fact the Patna High Court CR. APP (DB) No.223 of 1989 dt.10-01-2012 4 prosecution parties were intruders and they were trying to usurp the land by putting huts. Their further defence was that it was an accidental death and taking benefit of this unfortunate accident the accused persons were framed in a false case. 4. In order to prove its case the prosecution has examined ten witnesses they are P.W.1 Dhanesh Bind, P.W.2 Harihar Bind, P.W.3 Biafi Devi, wife of Ramji Bind, P.W.4 Muneshwari, wife of Briksha Bind, P.W.5 Pujani, wife of Chandrapal Bind, P.W.6 Basmatia, wife of Ranjan Bind and mother of the deceased, P.W.7 Ranjan Bind, P.W.8 Jawahar Bind, P.W.9 Nagendra Singh, P.W.10 Prabhat Kr. Singh. P.W.9 is the investigating officer of the case who initiated the investigation and has procured the inquest report and obtained post-mortem examination report. P.W.10 has performed the post-mortem upon the dead body of Dhimali. 5. On the other hand, the defence has examined eight witnesses and most of their witnesses are to show the ownership of the accused place of occurrence land. The defence witnesses are D.W.1 Pahwari Khan, D.W.2 Munni Rai, D.W.3 Shivnath Khan who have been examined Patna High Court CR. APP (DB) No.223 of 1989 dt.10-01-2012 5 twice as D.W.7 also. D.W.4 Anuruddh Singh, D.W.5 Chandradeo Mishra, D.W.6 Ali Asgar and D.W.8 Alimuddin are other witnesses who have been examined on behalf of the defence. None of the defence witnesses are on the occurrence rather they have proved some papers of the land in dispute. D.W.1 have stated about Khatian in favour of the defence. D.W.2 has stated about possession of the defence. D.W.3 has proved rent receipts in favour of the defence. D.W.4 has stated about enmity between two sides from before. D.W.5 is Dalpati of Dumar Narendra Gram Panchayat and he has exhibited the death certificate in the writing and signature of the then Panchayat Sevak of the Dumar Narendra Gram Panchayat. D.W.6 has proved the death certificate of Block Development Officer showing the death of Dhimali on 15.04.1985. D.W.7 has proved the sale deed (Bai-Beyana) of the order 1918 (Ext. E and A/1), D.W. 8 has proved the notice containing the signature of the Deputy Collector. 6. The prosecution evidence can be analyzed broadly in three groups. P.W.8 and 9 are public servants. P.Ws. 1, 2, 3, 6

Applicable IPC Section: 436

Statute Text:
Section 436 of the Indian Penal Code. 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.