RATHI DAS Vs. STATE

JUDGEMENT

(1.) THE three appellants were committed to sessions in one commitment proceeding and one set of charge under Section 436 read with Section 34, I.P.C. was framed against all the three appellants in S. T. No. 16/27 of 1972 by the Assistant Sessions Judge, Balasore, and he in one trial found all the three appellants guilty of the aforesaid charge framed against them and sentenced each of them thereunder to undergo R.I. for five years and to pay a fine of Rs. 500, in default to undergo R.I. for a further period of six months. After conviction, each of the appellants separately preferred the three jail appeals as shown above against the judgement of conviction passed by the Assistant Sessions Judge in S. T. No. 16/27 of 1972, Mr. S.C. Lal, Advocate of the local bar, who was engaged amicus curiae to appear for all the three appellants in the above mentioned three criminal appeals, addressed one set of argument on behalf of all the three appellants. So all the three criminal appeals are hereby being disposed of by this one common judgement.

(2.) THE accused persons and P.W. 9 were ill disposed towards each other since a few years prior to the date of occurrence. On the report of P.W. 9 the police instituted a G. R. case (G. R. No. 498/69) against the accused persons for causing grievous injury to P.W. 9. In the said case the accused persons were acquitted. Again at the instance of P.W. 9 the police initiated a proceeding under Section 107, Criminal Procedure Code against the accused persons and some others, and that proceeding was dropped after some time. It is alleged by the prosecution that on 1 -6 -71 the accused persons abused P.W. 9 and his wife in filthy language and also assaulted P.W. 9 on that occasion. P.W. 9 states that he informed that matter to the police. The prosecution case in short is that after the aforesaid incident in village Palasia on 1 -6 -71, P.W. 9, being afraid of the accused persons, left that village and went away with his wife to village Raisuan (about more than half a mile from village Palasia) and there stayed in the house of his cousin brother, P.W. 5. Thereafter P.W. 9 engaged Mangal Singh (P.W. 8) to watch his house in village Palasia at night. On 12 -6 -71, i.e. on the night of occurrence, the accused persons came to the house of P.W. 9 by about midnight, and threatened P.W. 8 with dire consequences and asked him to immediately go away from that place. On being threatened thus by the accused persons P.W. 8 left that place. While he was going away towards village Raisuan to inform about the matter to P.W. 9, he (P.W. 8) from some distance noticed that the house of P.W. 9 was set on fire by the accused persons. Without raising any hullah or informing anything to anybody in village Palasia he went away to village Raisuan and there informed P.W. 9 and his cousin brother P.W. 5 about the incident. On receiving the aforesaid information P.Ws. 5 and 9 went to P.W. 6, who advised P.Ws. 5 and 9 to meet P.W. 1, a school teacher in the village. Thereupon P.Ws. 5 and 9 met P.W. 1 and all three of them made efforts to secure the services of the Fire Station people at Balasore, but their efforts went in vain. On the next day, as alleged, P.W. 9 went to the Basta Police Station and there submitted a written report about the incident scribed by P.W. 1 and signed by P.W. 9, and on that report the F.I.R., Ext. 1, in the case was drawn up. Very soon thereafter the police came to the village and after investigation and commitment proceeding the accused persons were tried, convicted and sentenced as stated above.

(3.) IT is urged by Mr. Lal, the learned counsel for the appellants, that on the evidence on record it is not established beyond reasonable doubt that the accused persons set fire to the house of P.W. 9 in the night of occurrence. Excepting P.W. 8 there is no eye -witness to the occurrence. After going through his evidence along with that of P.Ws. 1, 6 and 9 it becomes extremely difficult for me to say that the prosecution has been able to establish the charge against the accused persons beyond reasonable doubt. The evidence of P.W. 8 on various important and salient features of the case does not get corroboration from the evidence of P.W. 9. Rather on certain important aspects of the case his evidence is directly in conflict with that of P.W. 9. According to P.W. 8 his wage in cash for watching the house was Rs. 2 per night, but according to P.W. 9, P.W. 8 was to get only Re. 1 per night as his wages for that job. P.Ws. 8 and 9 do not make consistent statements as to the actual number of days for which P.W. 8 actually watched the house of P.W. 9. P.W. 8 in his examination -in -chief stated that the watched the house for about 8 days, but in his cross -examination he stated that he guarded the said house for two nights and the occurrence took place on the third night. While P.W. 8 stated as above P.W. 9 stated that P.W. 8 watched his house for about 6 days. It is also significant to note that though he allegedly guarded the house for some days, he, as stated by him, did not have any talk with any of the villagers of Palasia during the period he guarded that house. He has also stated that during the days he was watching the house of P.W. 9 in village Palasia, none of the villagers of that village either saw him or had any talks with him during that time. P.W. 8 is a man of village Bachhada, and it sounds improbable that he would come unnoticed to village Palasia to watch the house of P.W. 9 and would go back from that village without coming in contact in any way with any of the villagers of that village. P.W. 8. as it appears from his evidence, knew well that P.W. 9 had to go away from village Palasia as the accused persons very often quarrelled with him and his wife and also assaulted him on one occasion. That being so it was not ordinarily expected of him not to make any contact with anybody in village Palasia and to take the risk of coming to and going out of that village at night all by himself and watching the house alone for the whole night. Any outsider like P.W. 8 in that village, and entrusted, if at all, with the job of watching a house at night of another person, who had enemies in the village, was expected to avail of all possible opportunities to come in contact with some villagers of that village, if not for anything else, at least for his own safety or for timely help.