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S.B.Criminal Appeal No.440/88
(Baksa v. The State of Rajasthan)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
J U D G M E N T.
BAKSA V. THE STATE OF RAJASHAN.
S. B. CRIMINAL APPEAL NO.440/88.
against the judgment dt.31.5.89,
passed by Shri P.S.Shukla, Sessions
Judge, Jalore in Sessions Case No.64/87.
DATE OF JUDGMENT ::: 23.07.2009
HON'BLE MR. JUSTICE C. M. TOTLA
Mr. P.N.Mohnani, for Appellant (s).
Mr. Anil Upadhyay, PP, for the State.
BY THE COURT :
Appellant challenges his conviction for the offence of Section 436
IPC and sentence awarded two years’ rigorous imprisonment and fine of
Rs.100/- as per judgment dated 4.11.88 in Sessions Case No.64/87.
Heard learned counsel and Public Prosecutor.
Alleged facts and events leading to appellant’s prosecution are that
on 10.9.87 at 8 pm, Pahlad PW 1 presenting typed report Ex.P1 at Police
Station, Sanchore informed that in night between 9.9.87 and 10.9.87 at 3
O’clock (Baksa) appellant accused came to his house and liting by a
match, set to fire his (complainant’s) Chhapra, ran away and the Chhapra
(residence Kuchcha) burnt. Mentioned in the report that observing fire
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S.B.Criminal Appeal No.440/88
(Baksa v. The State of Rajasthan)
from nearby, came Ganesha, Bhikha and Parsa who observed Baksa
running away, and with help of others, controlled fire. In the report,
further also mention that complainant himself was away to village Akoli
and getting opportunity in his absence, appellant did so who when asked
in presence of Ganesha and Bhikha, accepted mistake but resiled before
Panchayat. On this report, FIR No.91/87 was registered and in course of
investigation, inspecting site on 11.9.87 prepared memos Exs. P2 and
P5 appellant arrested and after usual investigation, charge-sheet
submitted.
Appellant charged for the offence of Section 436 IPC that – he in
night falling between 9th & 10th September, 87 at village Hariyali,
mischievously and to cause loss and damage to Pahlad, did put his
jhumpa on fire, denied.
On behalf of the prosecution examined in addition to complainant
PW 1 are Ganesha PW 2, Bhikha PW 3, Parsa PW 5 who all are named in
the FIR. PW 4 Akhe Singh, is motbir of site inspection etc. Swaroop
Singh PW 6 SHO registered FIR, whereas ASI Lakh Singh PW 7 is IO.
According to appellant, witnesses telling lie falsely implicated him
because of his enmity with Pahlad. No defence evidence led.
Learned counsel for the appellant argued that the complainant
Pahlad himself admittedly was not present on the night alleged incident
happened – witness PW 2 Ganesha considering his deposition could not
have seen litting by any one – evidence of all the witnesses read together
lead to inference that none of them was present at the time of incident
and they, if arrived at the place of incident, it was only after the said
incident of fire – witnesses relatives to each other, but complainant
denies the same. Thrustly submitted that evidence do not lead to
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S.B.Criminal Appeal No.440/88
(Baksa v. The State of Rajasthan)
inference of appellant’s involvement. Submitted that only the “chhapra”
that too a roof portion made of dry grass was burnt which not used as
residence and no other article damaged – the act cannot come within
purview of Section 436. Reliance placed on 2000 (2) R.C.C.1163 Narain
Lal v. State of Rajasthan. Also submitted that appellant remained in
custody for about five months and incident 22 years older and appellant
who then was above 45, now around 70.
Learned Public Prosecutor submitted that named witnesses in FIR
PWs 2, 3 and 5 are neighbour or residing nearby state of litting the hut by
appellant.
Thoughtfully considering arguments perused record and judgment
impugned.
As per lodged report Ex.P1 and also testimony of complainant PW
1, at the time of incident he was not there and out to village Akoli, about
20 km from the village.
ASI PW 7 who inspected the place of on 11.8.97 states that above
roof like hut made of grass and wood like material was burnt and coat
mattresses etc. lying in the hut were not burnt, neither was any sign of
any damage to articles. Thus, the inference is that only dry grass like
visitation were destroyed. It also transpires from the evidence that it was
of height not more than 7-8 ft.
Complainant Pahlad PW 1 deposed that he was out to village Akoli,
where in morning came Sardara and told him of litting by Baksa, so he
soon came and then with Ganesha and Bhika went to Baksa and asked
him fot it who, first denied, then accepted and then denied before
village Panchayat, so he lodged report at police station in evening. PW 1
says that his mother who unable to hear and younger brothers of little
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S.B.Criminal Appeal No.440/88
(Baksa v. The State of Rajasthan)
age were home at the time of incident and that the coats and other
house hold goods valuing Rs.400-500/- were also destroyed. PW 1 denies
that father of appellant is brother-in-law of father of complainant, but so
seems to have been accepted by PW 2. PW 1 also denies of PW 2 being
son of co-brother of father which is straightly accepted by PW 2. PW 1
admits that house of appellant is 7-8 houses after his house and in
cross-examination, states that no house-hold articles burnt or destroyed.
Ganesha PW 2 depose that when he sleeping in side house, on hearing
barking of dogs, woke up saw that appellant was litting and setting the
“chhapra” by a match box ran way then on his shouting came Bhikha,
Parsa & Ghewa and others from village who all pouring water,
extinguished fire, otherwise entire house-hold would have been
destroyed. PW 2 states that he narrated the entire incident to Pahlad who
came in early morning, then he (Ganesha), Bhikha and Pahlad went to
house of Baksa, where appellant was not and Bag Singh who was there
told them that he will make understand Baksa. As per PW 2, as the
appellant even after telling of Bag Singh, did not understand obey heed
so the complainant reported matter to police. In cross-examination, PW 2
stating ignorance of Gewa the father of appellant being brother-in-law of
father of complainant and that the coat and bed were also burnt. PW 2
clearly states that waking up, he observed appellant running away and in
between house of this witness and complainant is a chest high wall. If
the witness observed appellant running, then obviously, he did not see
him setting hut to fire.
Bhikha PW 3 deposed that he in night was out to house of Bhuta
for getting ginjected and when coming back, saw appellant running away
from house of complainant Pahlad. PW 3 further says that on shouting of
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S.B.Criminal Appeal No.440/88
(Baksa v. The State of Rajasthan)
Ganesha, 50-60 persons assembled and doused fire. As per PW 3 he
takes injection in a month or two and no medicine shop is in the village
and when he reached there, Ganesha was shouting and “chhapra” was on
fire. If this be so, then evidence as given by Ganesha is shattered. Again,
strangely PW 2 though taking injection in a month or two, was out for this
well beyond mid-night with no particular reason. PW 3 further says that
Ganesha told and asked him running away of Baksa. For the reason
mentioned above, testimony of PW 3 Bhika canot be believed and it also
questions veracity of PW 2. Parsa PW 5, named person in the FIR, state
that he sleeping in house and waking up on shouting of Ganesha
observed that appellant running away from there. In cross-examination,
state that first arrived Ganesha, then he arrived after 20 minutes, by that
time fire was doused by assembled 15-20 persons of village. PW 5 in
cross-examination says that when he was going towards hut, he observed
appellant running away. Paras PW 5 further says that next day he did not
have any conversation with complainant.
Per depositions of witnesses, seems that Ganesha reached after
arrival of his and Bhikha – PW 3 was much away from the place of
incident. Complainant and PW 2 are co-brothers. According to
complainant, he with Ganesha and Bhikha went to Baksa but – Bhikha
denies going to appellant. It also appears that panchayat was held and
the appellant did not accept any such act by him.
Evidence, as above, is not confidence inspiring one. It cannot be
held as proved that it was the appellant who lit the hut. No one definitely
did see appellant doing so or spontaneously running. As is observed,
burnt was “chhapra” of dry grass etc.
For the reasons above, no offence is proved to have been
committed by the appellant and he deserves to be acquitted.
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S.B.Criminal Appeal No.440/88
(Baksa v. The State of Rajasthan)
Allowing the appeal (against the judgment dated 4.11.88 in SC
No.64/87), conviction and sentence of appellant for the offence of Section
436 IPC is set aside. Appellant’s bail bonds are discharged.
(C. M. TOTLA), J.
scd