VISHNU PRASAD GUPTA Vs. STATE OF M P

JUDGEMENT

(1.) V ASJ, Jabalpur in S. T. No. 57/86 vide impugned judgment dated 2-5-90 recording conviction of appellant under Section 436,i. P. C. sentenced him to undergo R. I. for a period of 5 years. Being aggrieved, appellant has preferred this appeal under Section 374 (2), Cr. P. C.

(2.) COMPLAINANT Dalvir Singh (P. W. 1) on 3-11-84, submitting the written report (exhibit P-1) stated that on 1-11-84, his house was set on fire by a mob. Belongings kept in the house also were stolen. On this, the police registered the case under Sections 454, 380,436,1. P. C. Ajeet Singh, P. W. 5 on 4-11-84 stated to the police that in the mob he has been the appellant setting the house of complainant Dalvir Singh on fire. Completing the investigation, kishan, Halke, Ramnarayan and appellant Vishnu Prasad Gupta were charge sheeted under Sections 454, 395, 436, I. P. C. Appellant abjured the guilt. The Court below in S. T. No. 57/86 vide impugned judgment acquitted accused persons Kishan, Halke, ramnarayan and Jehinder Singh under Sections 453,395,436,i. P. C. However, held that appellant Vishnu Prasad Gupta set the house of the complainant on fire. As such recording conviction under Section 436,i. P. C. sentenced him to undergo R. I. for a period of 5 years.

(3.) P. W. 1 Dalvir Singh has stated that on 1-11-84, mob consisting of several persons raided the house-shop. Therefore, he along with family members left the house and stayed at Gurudwara, COD. On 3-11-84, found the house destroyed by fire. The belongings also were stolen. P. W. 2 Kuldeep Singh did not support the prosecution. As such was subjected to cross-examination. P. W. 5 Ajeet Singh has stated that on 1-11-84, a mob raided the house of Dalvir Singh and others. The houses were set on fire by appellant Vishnu Prasad Gupta. There is no other evidence to state that appellant Vishnu Prasad Gupta in fact was one of the participant and in association with others in mob set the house of P. W. 1 Dalvir Singh on fire. In State of M. P. Vs. Mishrilal and others, (2003) 9 SCC 426, it has been held that where the name of prosecution witness was not mentioned in the F. I. R. , alleged eye witness account may not be acceptable unless it stands to credibility test. On 3-11-84, report Exhibit P-1 was lodged with the police. In this report, P. W. 1 Dalvir Singh did not say that P. W. 5 Ajeet Singh was present at the time of alleged incident. What P. W. 5 Ajeet Singh has stated in para 7 of cross-examination is to the effect that after the incident he got the appellant apprehended. P. W. 1 Dalvir Singh has stated that his house was set on fire by the appellant as told by P. W. 5 Ajeet Singh. On 4-11-84, police recorded the statement of P. W. 1 Dalvir Singh. In this statement dated 4-11-84 (Exhibit D-1)witness Dalvir Singh has stated that on 5-11-84, he was told by his brother P. W. 5 Ajeet Singh that his house was set on fire by appellant Vishnu Prasad Gupta. Statement Exhibit D-2 of P. W. 5 Ajeet Singh was recorded on 4-11-84 itself. It is evident from statements of P. W. 1 Dalvir Singh and P. W. 5 Ajeet Singh that as soon as they learnt that the mob is supposed to raid their house, along with family members they escaped and stayed at Gurudwara, COD for several days. The police had visited the Gurudwara and P. W. 1 Dalvir Singh submitted report dated 3-11-84 (Exhibit P-l) to the police. It seems that till the report Exhibit p-l was lodged on 3-11-84, P. W. 1 Dalvir Singh, P. W. 5 Ajeet Singh did not state that they had seen the person setting the house of complainant on fire. Their statement was that mob consisting of several persons removing articles from the house, set the houses on fire.