Patna High Court
Birendra Yadav & Anr vs State Of Bihar on 24 February, 2018
Author: S. Kumar
Bench: S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.382 of 2003
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1. BIRENDRA YADAV son of Satan Yadav
2. SWAMINATH YADAV son of Raj Kishore Yadav
Both residents of village Hulasgarh, P.S. Raghunathpur, Distt. Siwan.
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. AWADHESH KR. PANDEY, Advocate
For the Respondent/s : Mr. Z. Hoda, APP
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CORAM: HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
Date : 24-02-2018
This criminal appeal has been filed against the judgment and
order of conviction and sentence passed by learned Addl. District
and Sessions Judge (Fast Track Court No. IV), Siwan, dated 18th
July 2003 in Sessions Trial No. 511 of 1995/108A of 2003 by
which appellants have been convicted under Section 435 of the
Indian Penal Code and have been sentenced to undergo rigorous
imprisonment for two years and further sentence to pay Rs.1000/-
and in default thereof further to undergo rigorous imprisonment for
six months.
Informant Jiut Yadav had filed a written complaint before the
Officer Incharge, Raghunathpur Police Station on 3.5.1994
alleging that he is resident of village Hulasgarh, P.S.
Raghunathpur, District-Siwan and had a palani made of straw in
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adjacent land of river in village Hulasgarh. It has further been
stated that on 9.4.1994 Sheonath Yadav, brother of informant, was
relaxing in his palani and four calves were also tied there.
Appellants Birendra Yadav and Swaminath Yadav came and set
ablaze the palani and same was protested by his brother but
accused-appellants did not pay any heed. The calves were saved
by Sheonath Yadav but seven palani for keeping calves and palani
meant for residing were burnt to ashes. It has further been alleged
that clothes and 100 bundles of Jao, Khesari were also burnt
causing loss of Rs.40,000/-. They informed the Sarpanch and the
Circle Officer and they were assured that matter would be solved
in Panchayat and appellants would be asked to compensate for the
damage suffered by informant and as such no case was lodged in
the police station. But when nothing happened, in consultation
with villagers written complaint was made on 3.5.1994 and FIR
was drawn on the said complaint. The matter was investigated by
the police and police submitted chargesheet. Cognizance was
taken and after commitment of the case the appellants faced trial
before the court of sessions. Appellants Birendra Yadav and
Swaminath Yadav were charged under Section 436 of the Indian
Penal Code and charge was read over and explained to them in
Hindi and they pleaded not guilty and claimed to be tried.
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Prosecution has examined altogether seven witnesses.
Amongst them P.W.1 is Sheonath Yadav, P.W.2 Munnalal Yadav,
P.W.3 Tilangi Yadav, P.W.4 Dinanath Yadav, P.W.5 Hanshnath
Yadav, P.W.6 Bhuwar Yadav and P.W.7 Jiut Yadav.
Defence has not examined any witnesses.
According to prosecution case on 9.4.1994 both the appellants
set ablaze palanies of informant in which seven palanies were
burnt to ashes and informant suffered a loss of Rs.40,000/-.
P.W.1 Sheonath Yadav, brother of informant, claims to be eye
witness and he has stated that while he was relaxing in the palani
of Jiut Yadav(P.W,7, informant) and after hearing noise he came
out of the palani and saw appellants Birendra Yadav and
Swaminath yadav setting fire the palani of Jiut Yadav(informant)
by match sticks. Six palanies were burnt along with cereals and
clothes. However, he managed to take out four calves. In his
cross-examination he has stated that he resides about 60-70 laggies
from the place of occurrence and has also stated that Darogaji had
come and upon raising his alarm Jiut Yadav (P. W. 7, informant)
and Manilal Yadav had come and by that time palanies were
completely burnt and attempt was also made to extinguish fire.
P.W.2 Munnalal Yadav has stated that the place of occurrence
is Hulasgarh Diara and on 3.9.1994 Darogaji had come on
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3.5.1994and at that time he was present there. He has further stated that Darogaji collected and seized the ashes and remnants of burnt palanies, burnt khesari and he put his signature on the seizure list. The other witness Chandradeo Yadav also put his LTI, who is now dead.
P.W. 3 is Tilangi Yadav, who has been declared hostile by the prosecution. This witness has not supported the prosecution case. P.W.4 is Dinanath Yadav, who has also denied that he has seen anything about the occurrence in his evidence. P.W.5 Hanshnath Yadav and P.W. 6 Bhuar Yadav have also been declared hostile.
P.W.7 Jiut Yadav is informant and he has stated that occurrence took place about six years back at about 1 P.M. in the day. He has six palanis in Hulasgarh and in one Palani Sheonath (P.W.1) was sleeping and appellants Birendra Yadav and Swaminath Yadav came and set fire the palani. He has further stated that there was a Panchyati but the appellants retracted and he has stated that he has lodged the report after one month of the occurrence but he has stated that on the next day of the occurrence Darogaji had come at the place of occurrence and he has lodged the case on the advice of villagers and Sarpanch. It has been stated on behalf of the appellants that the investigating officer has not been examined . There has been inordinate delay Patna High Court CR. APP (SJ) No.382 of 2003 dt.24-02-2018 5/6 in lodging the FIR. The occurrence is said to have taken place on 9.4.1994 whereas written complaint was filed on 3.5.1994 about one month after the occurrence, as such the prosecution case becomes doubtful, afterthought and fabricated. Informant is not an eye witnes to the occurrence and he has lodged the complaint on the basis of statement of Sheonath Yadav and same was lodged after consultation with villagers and Sarpanch. It has futher been submitted that when the complaint was lodged before the Circle Officer and Mukhiya, there was no reason the FIR could not have been lodged on the pretext of Panchyati. Nothing has come on record when and where the Panchyati was held and appellants denied their participation in the said Panchyati. It has further been submitted that P.W. 2 as well as P.W. 7 have stated that Darogaji had come on the next day at the place of occurrence but there was no occasion for Darogaji to come at the place of occurrence on the next day when FIR was lodged after one month on 3.5.1004. It has further been submitted that P.W.2 has stated that material exhibits in the form of burnt ashes and sticks were collected by the investigating officer and seizure list was prepared but the same has not been produced before the court below as material exhibits nor investigating officer has been examined on behalf of the prosecution, as such the whole prosecution case Patna High Court CR. APP (SJ) No.382 of 2003 dt.24-02-2018 6/6 becomes doubtful and appellants cannot be convicted when prosecution has miserably failed to prove its case.
After hearing the parties and considering the materials available on record , this Court finds that prosecution has failed to establish the charges against the appellants beyond reasonable doubt, as such, the order of conviction and sentence against the appellants cannot be sustained and the judgment and order of conviction and sentence passed by learned Addl. District and Sessions Judge (Fast Track Court No. IV), Siwan, dated 18 th July, 2003 in Sessions Trial No. 511 of 1995/108A of 2003 is set aside. This criminal appeal is allowed. The appellants are discharged from their bail bonds.
(S. Kumar, J) sudip/-
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