CRIMINAL APPEAL No.131 OF 1993 ------ AGAINST THE JUDGMENT AND ORDER DATED 5TH MAY, 1993 PASSED BY THE 3RD ADDITIONAL SESSIONS JUDGE, BHOJPUR, ARRAH IN SESSIONS TRIAL NO. 152 OF 1978. -------- 1. Nagad Pandey, alias Ram Nagad Pandey, son of Late Kashi Nath Pandey. 2. Tej Narain Pandey, son of Askaran Pandey. 3. Dhrub Narain Pandey, son of Nagad Pandey alias Ram Nagad Pandey. All residents of Village- Bharsara, Police Station- Jagdishpur, in the district of Bhojpur. .............Accused-Appellants. -Versus- The State of Bihar...............................Respondent. --------- For the Appellants: M/S. Akhileshwar Pd. Singh and Gopal Roy, Advocates. For the State : Mr. Jharkhandi Upadhayay,A.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA AbhijitSinha,J This appeal has been preferred by the appellants impugning the judgment of conviction and order of sentence dated 5th May, 1993 passed by Sri Murari Lal Kejriwal, the then learned 3rd Additional Sessions Judge, Bhojpur at Arrah, in Sessions Trial No. 152 of 1978 arising out of Jagdishpur P.S. Case No. 1 of 1977 whereby all the appellants have been convicted under Section 436 I.P.C. and whereas the appellants Nagad Pandey and Tej Narain Pandey have been sentenced to undergo Rigorous Imprisonment for 7 years each and have also been directed to pay a fine of Rs. 5000/- each. The appellant Dhrub Narain Pandey has been sentenced to undergo Rigorous Imprisonment for 10 years and has also been directed to pay a fine of Rs. 5,000/-. It was further directed that the sentence imposed shall be - 2 - reduced to the period undergone in case the amount of fine is paid by all the three convicts within 90 days from the date of the judgment in the Nazarat which after collection was to be defrayed to the informant. The aforesaid police case was registered under Section 436 I.P.C. on the basis of a written report(Ext. 1) dated 5.7.1977 submitted by the informant (P.W.8), Dashrath Ram, in respect of an occurrence which took place earlier that day at around 10-11 A.M. It is alleged that at the relevant time while he was bathing his cow, all the three accused came to his Darwaza and directed him to remove the tiles from his lands which according to them was their lands and when the informant declined to remove the same, the accused persons are alleged to have started removing the said tiles by throwing them away and feeling afraid thereby the informant also helped in removing the tiles. On hearing the commotion, Godhan Ram and Chand Govind Ram arrived. Thereafter, the accused started ploughing his lands and having done so, they ordered the informant to vacate the house and when the informant remonstrated, accused Nagad Pandey ordered for the others to set fire to the house of the informant whereupon, notwithstanding the witnesses present requesting the accused not to do so accused Tej Narain Pandey and Dhrub Narain Pandey set fire to his house as a result whereof clothes, wood, dung cakes, bags etc., kept therein were burnt. It was stated that the disputed lands was Gairmazrua Malik which was in his possession for a very long time and that the remaining lands which were also Gairmazrua Malik were - 3 - also in his possession. At the trial, in support of its case, the prosecution examined as many as 8 witnesses and brought on record documentary evidence in the form of the formal F.I.R.(Ext. 1/1), fardbeyan (Ext.1) certified copy of Khatiyan (Ext.2) and certified copy of the order sheet (Ext. 3). The defence also examined as many as 5 witnesses in support of its case and brought on record several documents. P.W.1 Shivnandan Dubey is an Advocate’s clerk and a formal witness who appeared in court to prove the formal F.I.R.(Ext. 1/1) and Fardbeyan(Ext.1). His evidence is hardly of any consequence and virtually has no bearing on the result of the case, since P.W.1 is not the author of those documents. P.W.2, Godhan Ram, in course of cross-examination admitted that P.W.7, Ganga Dayal Ram, is the father of the informant and suggestion was given to him that he is the brother-in-law (Sala) of Ganga Dayal Ram. P.W.2 further admitted in course of his evidence that during the occurrence Triveni Pandey and Parsuram Pandey were present at the place of occurrence but the grievance of the appellants is that both these persons though eye witnesses of the occurrence have not been examined by the prosecution and rightly so. Suggestions were also given to P.W.2 that it was the wife of Ganga Dayal Ram who set fire to the straw and instituted this false case and in fact no house of the informant was burnt. P.W.3, Chand Govind Ram, in course of his cross- examination admitted that prior to fire having been set the house had - 4 - been vacated and it was only straw that had been burnt. Suggestions were given to this witness that he had not stated before the police that it was the accused persons who had set fire to the house and articles were burnt. Suggestions were also given that informant is his Bhagina and it was the informant himself who had set fire to usurp the lands of Nagad Pandey and that the land adjacent to the house of the informant belonged to the accused persons whereupon stood Bomboo clumps of Nagad Pandey. P.W.4, Lalan Pandey, has stated in his evidence that while he was coming from Blacksmith he saw the house of the informant was on fire and the accused persons were seen fleeing therefrom. This witness has admitted that P. Ws. 2 and 3 are full brothers whereas he is their cousin and that P.W.7, Ganga Dayal Ram, is married to the sister of P. Ws. 2 and 3. Suggestions were also given to these witnesses that it was the informant himself who had set his house on fire. The informant Dashrath Ram,(P.W.8), has admitted in his evidence that the fardbeyan (Ext.1) had been drafted by Mukhiya Mangal Singh. He had also admitted that prior to the occurrence enmity existed between him and the accused persons. In paragraph no.15 of his deposition he admitted that the plot adjacent to the place of occurrence had not been examined and that P. Ws. 2, 3 and 5 were full brothers. Then again in paragraph nos. 18, 20 and 21 of his deposition he has admitted that the lands in question does not belong to him and in paragraph no.23 he admitted that the lands in dispute is - 5 - in possession of the accused persons for which a litigation was pending. Suggestions were also given to these witnesses that he had not stated before the police that food grains and Chaukhat had been burnt and stated that it was he himself who had set fire to the house to usurp the lands of Nagad Pandey. Further suggestion was given to him that being a Harijan and as the police would not do any harm to him he had set fire to the straw and that in fact no article had been burnt. The grievance of the appellants is that although they had proved the lands in dispute admittedly belonged to them, the learned trial court had ignored this basic fact and depending on the tainted evidence of the prosecution witnesses most of whom were related inter-se fell for the concocted story propounded by them of the informant being in possession of the land in order to usurp the lands of appellants. In this connection, it was submitted that it would be apparent from the admission of the informant himself that all the persons had been taken out from the house before the house was set on fire and that there were homicide. He had also admitted in his evidence that nothing apart from straw kept therein had been burnt. He had also accepted that he knew that survey plot no. 1683, Khata No. 19 appertaining to an area of 15 decimals had been recorded in the name of Nathuni Tiwari in the recent survey Khatiyan and 2 decimals of land appertaining to Plot No. 1682, Khata No. 331 had been recorded in the name of the State of Bihar and 5 decimals of land appertaining to Plot no. 1683/2203, Khata No. 231 had been recorded in the name of Ram Janam Pandey in the recent survey Khatiyan. The - 6 - informant further admitted in course of his evidence that both parties were on litigating terms in respect of lands in dispute. Curiously the Investigating Officer has not been examined in this case and no explanation has been furnished by the prosecution why he could not be examined by the Investigating Officer. According to the learned counsel for the appellants, great prejudice has been caused to the appellants by non-examination of the Investigating Officer inasmuch as they have been debarred from cross-examining the Investigating Officer in respect of the place of occurrence and his attention could not be drawn to the evidence of the prosecution witnesses with respect to their the statements recorded under Section 161 Cr. P.C. That apart the objective findings of the Investigating Officer which was very relevant and important for a just adjudication of the trial and the charges which the accused were facing has not been brought on record. As a matter of fact, even the case diary has not been produced in court. I have had the occasion to peruse the records as also the impugned judgment and from perusal thereof, it appears that the learned trial court has adopted a discriminatory method in accepting the prosecution case and rejecting the evidence. Reasoning of the trial judge for refusing to accept the defence case is that the defence witnesses were either interested or court birds or the labourers of the appellants and at the same time he has accepted the prosecution case notwithstanding the fact that the witnesses have admitted of their relationship with the informant which also goes to show that being the - 7 - relatives of the informant they were interested witnesses. It also appears that the learned trial judge erred in coming to a finding that the open land adjacent to the house of the informant did not belong to the appellants notwithstanding the fact that the informant himself had admitted in his evidence that 5 decimals of lands belonged to the family members of the appellants and 5 decimals belonged to one Nathuni Tiwari. No reason has been assigned as to why the documents produced by the defence had not been accepted by the trial judge. It also appears that the learned trial judge has not considered the evidence of the prosecution witnesses in proper prospective. When the informant himself has admitted that the disputed lands were in possession of the accused that would mean that the informant himself was a trespasser. Coupled with this fact is the admission of the informant of the existence of enmity between him and the accused. In such a situation the defence suggestion to the prosecution witnesses of the informant or his mother setting fire to the house in question in order to usurp the lands appears to be a plausible one. There is another aspect of the matter. The Investigating Officer has not been examined and therefore his objective findings as to the place of occurrence and nature and extent of burn of the house, if at all it was burnt, as alleged, is not available. That by itself is a very relevant factor in view of suggestions given to the prosecution witnesses of only straw having been burnt. In the circumstances the evidence of the ocular witnesses remains uncorroborated. - 8 - Even the sentence awarded is strange and unheard of. The subjective sentence of imprisonment cannot be reduced in the event of the fine being paid since the section itself provides for imprisonment and fine. Having heard the counsels for the parties and having appreciated the evidence on record it must be held that the learned trial court has erred in convicting the appellants under Section 436 I.P.C. Accordingly, the judgment of conviction and orders of sentences passed by the learned court below is hereby set aside and the appeal is allowed. The appellants appear to be on bail granted to them vide order dated 26.5.1993 passed by this Court in this appeal. They are, accordingly, discharged from the liabilities of their respective bail bonds. (Abhijit Sinha,J) Patna High Court, Patna. Dated: the 7th August,2009. U.K./A.F.R.