CRIMINAL APPEAL No.299 OF 1993 --------- Against the Judgment and order dated 16th September, 1993 passed by Sri Sardar Bhagat Singh, Additional District & Sessions Judge, Buxar in Sessions Trial No. 134 of 1986. ---------- 1. Suraj Lal, son of late Keshwar Lal, resident of village – Thori Pandeypur, Police station – Murar, District - Buxar 2. Bhola Ahir alias Bhola Singh, son of late Jageshwar Ahir, resident of village – Nawadih, P.S. – Kuran Sarai, District – Buxar 3. Govind Kamkar, son of Sri Vishwanath Kamkar 4. Gopal Kamkar, son of Vishwanath Kamkar …………… Appellants Versus STATE OF BIHAR …………Respondents ********* For the Appellants : S/Sri Ram Chandra Singh, Arvind Kumar, Jitendra Kumar Singh & Dr. Vidya Nand Kumar, Advocate For the Respondent : Sri Dashrath Mehta, A.P.P. ************ P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ------------- Dharnidhar Jha, J. Thirteen accused persons were put on trial by the learned Additional Sessions Judge, Buxar in Sessions Trial No. 134 of 1986 out of whom six were acquitted of the charges which were framed against the accused persons. Seven original appellants who have preferred the present appeal, were found guilty of committing offence under sections 147 and 436/34 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment for one year and seven years respectively on both counts of their individual conviction. The court further directed the appellants to pay fine of 2 rupees five thousand each, else, to suffer simple imprisonment for three months for their conviction under sections 436/34 of the Indian Penal Code. That judgment and order of conviction dated 16th September, 1993 is being questioned in this appeal. 2. During the pendency of this appeal, three appellants namely, Chhotak Kamkar, Hari Kamkar and Vishwanath Kamkar died and the appeal preferred by them, as regards their conviction, abates but their nephews and son, appellants namely Govind Kamkar and Gopal Kamkar, have been permitted to prosecute the appeal and challenge the sentence in its totality and that of fine in particular. 3. The case related to an occurrence dated 16th August, 1983 at 9.30 A.M. for which Fardbeyan (Exht.3) was lodged on the same day, alleging that all the accused persons, armed variously, came to the house of the informant, P.W. 6 and started demolishing the house and other structures which was objected to and that resulted into some assault on P.W. 6. Thereafter, appellant Bhola Ahir alias Bhola Singh is alleged to have brought out a match box from his pocket and by lighting the stick, is alleged to have set the residential house of P.W. 6 at fire which gutted the properties kept therein. Three persons Nagina Gor, Sri Bhagwan Chamar and Gupteshwar Gor along with other villagers came there and they extinguished the fire. 4. It is admitted in the FIR itself that the accused persons were claiming the very land on which the house of the informant was standing as their own by virtue of the same being purchased by them and were asking, as such, to vacate the same which was being refused and as such, the incident. 3 5. The defence of the appellant was that there was no occurrence at all and, in fact, for litigations which were pending on the very day of the incident, both civil and criminal, the informant filed a false case so as to putting criminal pressure upon the appellant. 6. Seven prosecution witnesses were examined by the prosecution out of whom P.Ws 2, 3 and 4 categorically stated that they did not know anything about the occurrence and as such, each of them was declared hostile. The support of the charges came from the informant, P.W.6, his wife, P.W. 1 and his mother, P.W. 5. Investigating Officer of the case was not examined. 7. The defence examined two witnesses and produced a number of documents in support of their plea of purchasing the land, for the pendency of some litigations and on consideration of the evidence, both of prosecution and defence, the learned Trial Judge convicted the seven appellants, as indicated in the earlier part of the present judgment. 8. Sri Ram Chandra Singh, learned counsel for the appellant has submitted that the very evidence of P.W. 6, the informant, indicates that there was land dispute between the parties and both civil and criminal litigations were pending for the land. It is also admitted that the disputed land was purchased by the accused persons from one Bhuvneshwar Dutt Mishra who had obtained the same through gift and that the informant was, by and by, pinching upon the disputed land and for that a criminal case had also been lodged by the accused persons and that was pending. The next contention was that the fact that the house was set at fire was not established on account of non- 4 examination of the Investigating Officer which has further prejudiced the case of the appellant inasmuch as vital contradictions could not be proved on account of non production of the Investigating Officer. The contention further was that P.W. 5, the mother of the informant, could not be treated as a competent witness and her evidence admissible in the light of her admission in paragraph 2 that she had not made any statement before the police before deposing in court. As regards P.W. 1, the wife of the informant, it was contended that she was suggested in paragraph 4 of her evidence that she had stated to the police that she had not seen as to who had set the house at fire which fact was denied by her. The contention further was that the encroachment over the disputed land is admitted by P.W. 6 in his deposition and probably these were the reasons as to why he had filed a false case. 9. Sri Dashrath Mehta, learned Additional Public Prosecutor, appearing for the state, firstly, attempted to defend the finding of the Trial Judge by submitting that even an encroacher could have a settled possession over any piece of land if he had settled down by an act of trespass over a considerable period of time over a particular property within the knowledge of its owner and the owner by virtue of that knowledge, could not oust him by use of criminal force. If any use of criminal force is made by any of such persons, he could not escape criminal liability. It was contended that the informant appears having settled down over the property and the act of arson could not be countenanced by taking a plea of land dispute. However, the learned Additional Public Prosecutor was fairly conceding that under the facts of this case and in view of the infirmity which inheres the judgment, 5 the learned trial judge could have extended the benefit of doubt to the appellants. 10. The FIR (Exht. 3) does not contain a statement that any one ordered upon which appellant Bhola Ahir set the house at fire. This appears introduced for the first time by P.W. 1 where she stated that Suraj Lal ordered, upon which, Bhola Ahir set the house at fire. The attention of P.W. 1 was drawn to that particular improvement during the course of her cross examination. Similarly, P.W. 6 also stated in examination-in-chief that the appellant Suraj Lal had ordered to set the whole house at fire and burnt it upon which appellant Bhola Ahir lit the match stick and set the house at fire. His attention was drawn by cross- examining him in paragraph 4 of the evidence and he stressfully stated that he had made such statement. P.W. 5, the mother of the informant has not made any statement as to who had ordered for setting the house at fire. She had made the general statement during the course of her deposition that the house of the informant was set at fire. This appears an important improvement in the prosecution case as in absence of any specific allegation of any nature against any of the accused, the witnesses started alleging definite overt acts against a particular appellant. Not only that, P.W. 1, the wife of the informant denied the suggestion that she had stated before the police that she did not see as to who had set fire to the house. This could be available in paragraph 4 of the evidence of P.W. 1. Likewise, P.W. 5, the mother of the informant was cross-examined in paragraph 2 to be suggested by the defence that she had not made some vital statement as may appear from paragraph 5 of the evidence of that particular witness. The 6 statements of P.Ws. 1, 5 and 6, as indicated above, or which were made by them during the course of trial, appear very vital. Those statements could not be said to be facts or material which could be lying at the periphery of the case or which could not be said to be the central facts of the entire occurrence. Omissions which lie at the periphery of an incident are not contradictions but the facts which generally affect the very central theme of the offence on account of being improvement, assume the significance of contradictions and if the defence does not get the opportunity of establishing it by virtue of section 157 read with section 145 of the Evidence Act, then necessary adverse inference has to be drawn. The learned trial Judge ought to have drawn that adverse inference. 11. In addition to the above, the non-examination of the Investigating Officer was not a simple, lighter happening in the trial, it was a very serious conduct on the part of the prosecution of withholding him. The reasons could be many. The one, I have already discussed in the preceding paragraphs. The other is that the very story that the accused persons came, demolished the tati and other structures of the house of the informant and threw them into the pond, as may appear from the evidence of P.W. 6, could have been objective findings had the Investigating Officer been examined to say that those things were found by him. Besides the house was gutted on account of being set ablaze by appellant Bhola. The Investigating Officer could have been the person, in absence of any independent person coming to depose except the family members of P.W. 6, to show that in fact he had found the house gutted or properties fully or partially burnt which 7 were kept inside it. These were necessary facts which could have established the allegation that the accused persons had set the house at fire. The non-examination of the Investigating Officer, to me, appears assuming a greater proportion. It has definitely prejudiced the defence on the one hand and has rather disproved the charges of the prosecution, on the other. 12. Three persons named in the Fardbeyan as eye witnesses who extinguished the fire have not been examined. P.W. 6 has stated that they were threatened by the appellants not to come forward and give their evidence. The court cannot accept the evidence inasmuch as those were not the only persons who had arrived at the scene of occurrence rather as per the fardbeyan itself, there were many more persons who could be independent who had rushed to the scene of occurrence and extinguished the fire. None of them have come forward to depose. The evidence comes through three related witnesses who were litigating for the piece of land or part thereof with the accused persons, both on civil and criminal side. P.W. 6 has admitted in his evidence in page 12 of the recorded evidence that with inflating number of his children, he started by and by creeping upon the land of the accused persons so as to encroaching it. If this could be the conduct of a man so had encroached upon the property held by a person, there could be any probability if he acts against his opponents. Probabilities were there in the above behalf that it could also be a case of false implication particularly when the Investigating Officer had not come into the witness box and no independent person had come to depose in 8 court. Facts of the case and circumstances arising therefrom, entitle the appellants to the benefit of doubt. The same is given to them. 13. Accordingly, the appellants are acquitted of the charges framed against them. Appellants who are alive and are on bail, are discharged from their respective bail bonds. The appeal stands allowed. (Dharnidhar Jha, J.) Patna High Court, The 17th March, 2009 NAFR/Anil/