In the High Court of Uttaranchal, at Nainital. Criminal Appeal No. 1556/2001 (Old No. 1061/1998) Bhaskar Dutt S/o Girdhar Dutt R/o Village Dewakhand, P.S. Lohaghat, District Pithoragarh ….. Appellant. Versus State Of U.P. ….. Respondent Sri Pramod Tiwari, learned Amicus Curiae, for the appellant. Sri Nandan Arya, learned A.G.A. for the respondent. Hon’ble B.C. Kandpal,J. This criminal appeal has been preferred by the appellant against the judgment and order dated 17-4-1998, passed by Sessions Judge, Pithoragarh, in S.T.No. 65/1995, thereby convicting accused/appellant U/S 436 I.P.C. and sentencing him to undergo R.I. for five years R.I. and a fine of Rs. 15,000/- and in default for payment fine, further undergo R.I. for two years. 2- Brief facts giving rise to this appeal are that Basant Ballabh, had his house in village Dewalnad Tehsil Champawat, P.S. Lohaghat District Pithoragarh, in the half portion of which he along with his family members used to reside and in the other portion his cattle, were tethered. On 10-6-1995, accused Bhaskar Dutt of his village abused him and in the same night at about 11-30 P.M he set fire to his house/cowshed, due to which his she- buffalo, her calf and 3 goats had died and his whole household goods kept inside his house was also burnt to ashes. He also sustained burn injuries on his hand. On raising alarm by the complainant, Village Pradhan and other villagers reached at the spot and saved the adjacent houses by extinguishing the fire. The complainant Basant Ballabh lodged the written report, Ext. Ka.2, of the incident at P.S. Lohaghat on 11.6.1995 at 7.15 A.M. on the basis of the written report, chiek report, Ext. ka.7 was drawn and a 2 case U/Ss 436, 429, 427, 504 I.P.C. was registered against the accused in the G.D. at report No. 11, copy of which is Ext. Ka.8. 3- S.I. Lokesh Kumar Sharma investigated the case. He visited the spot and prepared site-plan, Ext. Ka.3. He took into possession the ash from the spot and sealed it and prepared recovery memo Ext. ka. 1 and also prepared sample seal, Ext. Ka.4. The I.O. sent the bodies of buffalos and three goats for post mortem examination and prepared letter for the same to the Veterinary Doctor, Ext. Ka.5. The postmortem examination of the dead cattle was carried out by Dr. H.C. Thapliyal. After completing the investigation the I.O. submitted charge sheet, Ext. Ka.6 against the accused. 4- The learned Sessions Judge on committal of the case framed charge 436 I.P.C. against the accused, who pleaded not guilty of the charge, and claimed his trial. 5- Thereafter, the prosecution in support of its case examined in all seven witnesses viz. P.W.1, Smt. Dharma Devi, P.W.2, Ganga Devi, P.W. 3, Sheeshpal, P.W.4, Ramesh Chandra, P.W.5, Basant Ballabh, P.W.6, S.I. Lokesh Kumar Sharma and P.W.7, H.C. Jagdish Chandra Bhatt. 6- P.W.1 Dharma Devi and P.W.5, Basant Ballabha are the eyewitnesses of the occurrence. Both these witnesses have given consistent version of the occurrence. They have deposed that in the night of the occurrence Dharma Devi felt sick and wanted to go out to ease herself. At about 11.30 P.M. they went out. The accused who lived close-by came and hurled abuses at them and then set fire to the hay stack near the ‘Goth’ in their house. The fire spread quickly. The witnesses also deposed that the accused knocked at the door of Sheesh Pal and shouted that he has set fire to Basant Ballabh’s house and Sheesh Pal may take care of his children and house and then he fled away. At this both the witnesses rushed to take their children, belonging and cattle out, but three goats and two buffalos died as a result of burn injuries and Basant Ballabh 3 also sustained burn injuries on his hand. The witnesses also deposed that they suffered a loss of Rs. 35 to 40 thousands in the fire. 7- P.W.3, Seesh Pal is the real brother of accused Bhaskar Dutt and P.W.2, Smt. Ganga Devi is the wife of P.W.3, Seesh Pal. Both of them have deposed that on the date of the incident at about 11.30 P.M. in the night accused knocked at their door and told that he had has set fire at the house of Basant Ballabh, they should take care of their children and the house. At this these witnesses came out of their house and saw that the house of Basant Ballabh was burning. The witnesses have deposed that Basant Ballabh had suffered a loss of about Rs. 30 to 35 thousands due to the fire. These witnesses also deposed that they helped Basant Ballabh in bringing out the cattle and other luggage out of his house. 8- P.W.4, Ramesh Chandra is resident of the village of complainant. This witness has been examined to corroborate the incident. This witness has deposed that on 10-6-95 at about 11.30 P.M. in the night on hearing noise he came out of his house and tried to extinguish the fire at the house of Basant Ballabh. He deposed that there was enmity in between the accused and the complainant with regard to landed property. 8- P.W.6, Lokesh Kumar Sharma, is the I.O. of the case. This witness has proved the prosecution papers during the investigation. He also deposed the when he reached at the spot, he saw that one she-buffalo aged 4 years, her calf, 7 days old and three goats for the complainant were lying dead due to the burn injuries. 9- The complainant Basant Ballabh was examined by Medical Officer Incharge Champawat on 11.6.1995 at 1 P.M. and found following injuries on his person: 1- Extreme blackish discoloration and blusters involving left hand mainly index, middle ring and little finger. Mainly out aspect of fingers was involved. 2- Superficial burn left knee 6cm x 5 cm. 4 In the opinion of the Medical Officer the injuries were inflicted by flame burn. Nature of the injuries was simple. The postmortem examination reports of the dead she- buffalos and goats have also been brought on the record. 10- The accused in his statement U/S 313 Cr.P.C. has denied the prosecution allegations, he deposed that the complainant had forcibly taken possession over his land and bore enmity with him and on account of the enmity false case has been concocted against him. However, no evidence, oral or documentary has been adduced by the accused. 11- The learned Sessions Judge, on appreciation of prosecution evidence, and having heard learned counsel for the parties held the accused guilty for the offence U/S 436 I.P.C. and sentenced him to undergo five years R.I. and fine of Rs. 15,000/- and in default of payment of fine to further undergo two years R.I. 12- Feeling aggrieved the accused/appellant preferred the appeal before Allahabad High Court which was subsequently transferred to this Court after creation of new State. 13- I have learned Amicus Curiae on behalf of the accused/appellant, learned A.G.A. and perused the record. 14- Firstly learned Amicus Curiae has argued that the accused/appellant has been falsely implicated in the crime on account of the enmity between the complainant and the accused and the trial Court has committed manifest error in believing the statements for the witnesses. 15- To substantiate the argument of the learned Amius Curiae it will be just and proper to assess the evidence of the prosecution witnesses. P.W.1, Smt. Dharma Devi is the wife of the complainant. It has come in the evidence of the prosecution witnesses that the house of Seesh Pal is at 20 paces from the house of complainant. Accused also used to live in that house. This 5 witness has deposed that often the accused used to quarrel with them and used to threaten to set fire to their house. In the night of the occurrence she was not feeling well and at about 11.30 P.M. she came out to ease herself along with her husband Basant Ballabh. At this the accused hurled abuses on them and set fire at their house with a match stick. After setting fire to the house, the accused knocked at the door of his brother Seesh Pal and told him that he has set fire at Basant Ballabh’s house, Seesh Pal should take care of his children and house. This witness has categorically deposed that she and her husband rushed inside their house and brought out their children. On raising alarm Seesh Pal and Ganga Devi and other villagers including Village Pradhan reached at the spot and tried to extinguish the fire. She further deposed that their house hold goods kept inside the house was burnt to ashes. Her two she-buffalos and three goats had died due to burn injuries. In her cross-examination this witness has denied the suggestion that the accused was falsely implicated due to enmity. This witness has also deposed that the house was used for human dwelling as well as for tethering the cattle. She also deposed that the fire was set by the accused at the heap of grass kept at the wall of the house and the fire spread quickly to her house. In the cross-examination nothing material has come out which may create any doubt about the reliability of her evidence. The witness has given a consistent version of the incident. 16- Another eye witness of the occurrence is P.W.5, Basant Ballabh. This witness has fully corroborated the statement of P.W.1, Smt. Dharma Devi and narrated the consistent version of the prosecution case. He has lodged the written report of the incident next day, i.e. 11.6.1995, at 7.15 A.M. The occurrence in the instant case was committed in the late mid night, therefore, delay was not there in lodging the F.I.R. This witness also deposed that at the time of occurrence the accused came there hurling abuses at him and set fire to the house. This witness also deposed that after setting fire to the house accused knocked at the door of his brother Seesh Pal and told that he had set fire to Basant Ballabh’s house, Seesh 6 Pal should take care of his children and house. At his Seesh Pal and his wife came out of their house and they also took part in extinguishing the fire. Although in his cross examination, this witness admitted that the accused had dispute with him with regard to some land and they had no good relations, but it cannot be said that due to this reason the accused was falsely implicated in the crime. Enmity may be used as double edged weapon. It may be the cause for the accused to commit the crime. P.W. 1 and P.W. 5 appear to be reliable witnesses. The defence has not been able to elicit anything material which may discredit their testimony. 17- Further the prosecution version has further been corroborated by the independent evidence of P.W. 2, Smt. Ganga Devi and her husband P.W. 3, Seesh Pal. P.W.3, Seesh Pal is the real brother of the accused and P.W.2 Smt. Ganga Devi is his real sister-in-law. Both these witnesses have supported the prosecution case. They have deposed that in the night of the incident at about 11-11.30 P.M. accused knocked at his door and told that he had set fire to the house of Basant Ballabh, he should take care of his children and the house. Thereafter the accused had fled away. At this they came out of their house and saw that the house of Basant Ballabh was burning to flame. They also alleged that they helped Basant Ballabh in bringing out their children out of the house. It was also deposed that two she-buffalos and three goats had died due to burn injuries and all the household goods kept inside the house was also burnt to ashes. Basant Ballabh had suffered a loss of about Rs. 35 thousands. P.W.5, Seesh Pal in his cross examination has denied the suggestion that he had enmity with his brother accused Bhaskar Dutt and due to the enmity he was deposing falsely against him. There was no reason why these witnesses falsely depose against the real brother/brother in law. Had the accused not set fire at the house of Basant Ballabh, then there was no occasion for these witnesses to falsely depose against the real brother/brother-in-law. The deposition of these witnesses appear to be cogent and consistent with regard to the actual incident. 7 18- P.W.4, Ramesh Chandra is the witness of fact. He has also corroborated the statement of the prosecution witnesses and has deposed about the incident and loss caused to the complainant. 19- Against the cogent and reliable evidence adduced on behalf of the prosecution, the defence has not come forward with a steady version. Bare suggestion has been put to the witnesses that the accused was falsely implicated due to enmity, but nothing has been brought on record even to create any defence. From the evidence of the prosecution witnesses, it has been fully proved that the accused had committed the offence of mischief by setting fire at the house of the complainant. There is no substance in the argument advanced by the learned Amicus Curiae that the accused was falsely implicated due to enmity. 20- The learned Amicus Curiae also raised submission that the accused set fire at the heap of grass. The cattle of the complainant were kept in a ‘Goath’ which cannot fall within the purview of human dwelling place and the accused cannot be held liable for mischief by setting fire. 21- The submission raised by the learned Amicus Curiae has no force. It has come in the evidence of the prosecution witnesses that the cattle for the complainant were tethered in a half potion of his house and the other half portion of the house was used by the complainant and his children as human dwelling place. No doubt the house of the complainant was grass-roofed. In the interior hills most of the houses are grass-roofed and may be defined as human dwelling places. According to the prosecution version the accused set fire to the grass-heap kept in the wall of the house and the accused had full knowledge that the flame of the fire will certainly burn the house of the complainant. The intention of the accused was very clear, as after setting fire to the house of the complainant, he knocked at the door of his real brother Seesh Pal and told him 8 that he had set fire to the house of Basant Ballabh, he should take care of his house and children. 22- On appreciation of evidence of prosecution witnesses and the facts and circumstances of the case, I come to the conclusion that the prosecution has been successful in establishing the guilt of the accused beyond all reasonable doubt. The learned Sessions Judge has rightly convicted and sentenced the accused for the offence of mischief by fire committed by the accused. I find no reason for interference in the finding recorded by the learned Session Judge. 23- The appeal being devoid of any force, is liable to be dismissed. 24- Accordingly the appeal is dismissed. The judgment and order of conviction and sentence dated 17-4-1988 passed by the learned Sessions Judge in S.T. No. 65/1995 is hereby confirmed. 25- The accused is already in jail. He shall be detained in the prison to serve out the sentence imposed against him. (B.C. Kandpal, J.) Dated:03-08-2006 ISB