SIDHESHWAR PANDEY AND Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) THE instant criminal appeal is directed against the judgment of conviction and order of sentence recorded against the appellants by the 2 Additional Sessions Judge, Deoghar in S.T. No. 6 of 1996/1 of 2001 by which both the appellants were convicted under Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years.

(2.) THE prosecution story in short was that the informant Baleshwar Pandey (P.W. 7.) presented a written report before Kunda police station narrating inter alia that in the night intervening 23.5.1994 while he with his nephew P.W. 2 Shyam Sunder Pandey was sitting on the roof of the house and both were in agony as they had cremated a close relation in the day hours, in the meantime at about 12 O'clock the informant spotted a burning object coming across his roof which fell on the roof of the hut centrally located in his court yard which inflamed the hut instantaneously. The informant then immediately turned back from which direction the burning object came and he witnessed the appellants fleeing towards their house who could be identified in the light of bulb as also in the moon light. On the alarm there being raised by the informant and his nephew the villagers assembled and assisted in extinguishing the fire that had engulfed the hut. The occurrence was witnessed by Muktinath Pandey (P.W. 3) and others who claimed to have seen the appellants running away from the place of occurrence. The informant thereby sustained loss on account of burning of cloths worth Rs. 1500/ - which were kept inside the hut. The informant alleged that the appellants had committed mischief by causing fire in his house. The criminal law was set in motion on the basis of the written report of the informant by registration of Mohanpur (Kunda)P.S. Case No. 59 of 1994 on 23.5.1994 for the alleged offence under Sections 436/427 of the Indian Penal Code. After investigation charge sheet was submitted only under Section 436 of the Indian Penal Code against them. The appellants were put on trial for the charge under Section 436 of the Indian Penal Code, as they had pleaded not guilty.

(3.) ADVANCING his arguments the Learned Counsel submitted that admittedly there was no eye witness of the alleged occurrence and the prosecution witnesses including the informant and his nephew claimed having seen the appellants at some distance running away towards their house situated in the neighbourhood. The Learned Counsel attracted the attention that on alarm several witnesses assembled at the scene but none of them ever attempted to apprehend the culprits by chasing them. They even did not visit the house of the appellants to interrogate about their involvement, immediately after the alleged occurrence. No independent witness could be produced and examined on behalf of the prosecution except the interested and partitioned witnesses though the informant including the other witnesses were consistent that on the alarm of fire, Shivnarayan Pandey and Shaktinath Pandey, had appeared at the scene but they were not brought to the witness box. The Learned Counsel pointed out that according to the prosecution case, the hut made of straw was situated in middle of the court yard of the informant surrounded by Pucca rooms with pucca roof, alleged to be set on fire by the burning object which came from out side across the boundary of the house from the eastern side. Neither seizure list of the burning object nor the remains of the burning object could be produced before the trial court in support of the prosecution case that the hut of the informant was actually burnt. The prosecution miserably failed to prove that the hut in question was a dwelling house or a place of keeping the house hold articles or any other equipments, cloths etc. which was set on fire so as to attract the offence under Section 436 of the Indian Penal Code. He further pointed out that the identity of the appellants could not be established beyond doubt. The witnesses including the informant were consistent that they had identified the appellants at some distance from their back side in the night while they were running away towards their house in the light of the street light. But without objective finding of the Investigating Officer -as to whether he found street light on the path way which led to the house of the appellants. According to the witnesses, the burning object came from the eastern side of the brick built room and the measurement of the room was given as the length of the roof to be 20 cubic 20 feet wide and 10 feet in height with the railing and it was thrown with such velocity and force like a missile that it could burn the hut thereby causing damage to the property worth Rs. 1500/ - only. Such story that has been propounded by the informant and other witnesses appeared to be unfounded which could not be practically possible. The prosecution failed to adduce evidence that the hut was used as a place of worship or as a place of human dwelling or as a place of custody of property It was stated that the clothes worth Rs. 1500/ - kept in the hut were burnt but without seizure of burnt pieces.