Allowed

Kaloo and Others v. State

Allahabad HC22 Oct 2018CRLA/3123/1982

Case brief

AI extract

What is this about?

Criminal Appeal against conviction for setting fire to a cattle shed. The High Court acquitted the remaining appellants after finding the prosecution witnesses' statements contradictory, unreliable, and lacking corroboration, noting the nature of the alleged incident was unnatural given the lack of consistent witness presence or light.

What did the court decide?

Impugned judgment set aside. The appellants Mahesh, Ram Singh and Gajadhar are acquitted. Bail bonds cancelled and sureties discharged.

Kaloo and Others Vs State — Allahabad HC (2018) — LawSathi Research

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Court No. - 41

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Case :- CRIMINAL APPEAL No. - 3123 of 1982

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Appellant :- Kaloo & Others Respondent :- State Counsel for Appellant :- S.K.Srivastava,B.G. Yadav Counsel for Respondent :- A.G.A.

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Hon'ble Aniruddha Singh,J.

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1- Heard Sri B.G. Yadav, learned counsel for the appellantsMahesh, Ram Singh and Gajadhar and Sri Manoj Kumar Dwivedi (B.H.) learned counsel appearing for the State and perused the record.

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2- This criminal appeal has been preferred by the appellants Kalloo, Mahesh, Ram Singh, Cheta and Gajadhar against the judgment and order dated 8.12.1982 passed by Additional Sessions Judge, Hamirpur in S.T. No. 185 of 1981, under Section 436 I.P.C., Police Station Jariva, District Hamirpur whereby the appellant nos. 1 to 5 were convicted under Section 436 I.P.C. and sentenced them to undergo five years rigorous imprisonment.

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3- In nutshell, the fact according to prosecution case is that on 4.7.1980 at about 5-00 A.M., the complainant and his father were going to their cattle-shed and when they reached near the cattleshed, they saw that the accused persons were setting fire to their cattle-shed. On this, the complainant and his father raised an alarm and on their alarm, witnesses Chetram and Teekaram and other villagers came there. On their challenge, the accused persons said that they would set fire also the resident of the complainant. The accused persons have set fire to the cattle-shed of the complainant due to enmity.

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4- A written report Ext.ka 1 of the occurrence was lodged by Shatrughan at P.S. Jariya on 4.7.1980 at 9-30 A.M. On the basis of said report, a chik F.I.R. Ext.ka 5 was prepared at the police station and a case was registered in the G.D. at serial no. 10 on 4.7.1980 at 9-30 A.M., copy of which is on the record as Ext.ka 6.

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5- The investigation of the case was conducted by Sri Lachchhi

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Ram, the then Sub-Inspector of P.S. Jariya. He interrogated the witnesses and inspected the spot and prepared a site-plan Ext.ka 3. He took into possession the burnt ashes, sealed the same and prepared a Fard Ext.ka 4. After completing the necessary investigation, he submitted the chargesheet Ext.ka 2 against the accused persons.

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6- The accused persons have denied the allegations of the prosecution and claimed that they have been falsely implicated due to enmity.

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7- The prosecution, in support of its case, has examined the complainant Shatrughan as P.W. 1, Hari Singh as P.W. 2, Teeka Ram as P.W. 3 and Sri Lachchhi Ram, the Investigating Officer, as P.W. 4.

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8- The statement of the appellants were recorded under Section 313 Cr.P.C. and after hearing learned counsel appearing for both the parties, the impugned judgment and order was passed. Hence this appeal.

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9- During pendency of this appeal, appellant no. 1-Kalloo and appellant no.4-Cheta have been died and the appeal against appellant nos. 1 and 4 was abated vide orders dated 6.7.2017 and 6.10.2018.

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10Learned counsel for the appellant nos. 2, 3 and 5 submitted that the impugned judgment is against law and fact. Main role for the offence under Section 436 I.P.C. was basically assigned to appellant no.1-Kalloo, who has been died and appeal against him has already been abated. Except Kalloo, general role has been assigned to all the appellants regarding loss of property of Rs.1200/-, on account of which burnt articles were shown to be 'Kandi' (cow dung cake) and 12 'Ballis' of wood and except these two things, nothing was burnt but F.I.R. was lodged showing false story that is unnatural and unbelievable. The incident is alleged to have been taken place in the night. Nobody had seen the incident. P.W.3-Tika Ram is not the eye witness. P.W.1-Shatrughan Singh and P.W.2-Hari Singh are father and son and it is admitted that in another case they were accused for an offence under Section 307

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I.P.C. and that was decided on the basis of compromise. There is no believable evidence against the present appellants.

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11Learned A.G.A. submitted that there is sufficient evidence against the accused-appellants to convict them under Section 436 I.P.C.

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12From perusal of the record, it transpires that the original home of the complainant is another place from one furlong from the place of occurrence. No animal was found burnt and statements of P.W.1 and P.W.2 have major contradiction and they were so called eye witnesses. From perusal of the record, it also transpires that P.W.2 himself has not ascertained that at which time the incident has taken place. According to F.I.R., the date of incident is 4^th July, 1980 at 5-00 A.M. According to statement of P.W.2, time of the incident is alleged to be midnight at 12-00 P.M., as stated at page 6 of the statement of P.W.2, who is so called eye witness.

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13Enmity between the parties is admitted. P.W.1 in his crossexamination, copy of which is at page 3, clearly accepted that accused Kalloo had lodged an F.I.R. against his father under Section 307 I.P.C. and accused Chet Ram was the witness of that case and they were acquitted in that case. On the same point, P.W.2 in his statement, copy of which is at page 23, clearly admitted that it is correct that proceeding under Section 107 Cr.P.C. was instituted against him on behalf of the accused persons. Hence, statements of P.W.1 and P.W.2 may be scrutinized carefully and vigilantly because they were interested witnesses as well as inimical witnesses.

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14P.W.1 and P.W.2 in their statements before the court deposed that five accused had set fire by using kerosene oil in log of woods with the help of clothes. This story is unnatural and unbelievable. They burnt the 'Kandi' by setting a fire. There was no need of five persons to go with plan and use kerosene oil and clothes, etc. in the month of 4^th July, 1980 when no rain was fallen. Only one person was sufficient to destroy the property by using match sticks, which is alleged to be cost of Rs.1200/- only. It clearly shows that the statements given by P.W.1 and P.W.2 were after thought and with legal consultation and with heavy improvement, hence

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statements of P.W.1 and P.W.2 are not reliable and on this very ground, the appellants are liable to be acquitted.

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15It is not proved beyond reasonable doubt that at what time the incident has taken place either in mid night or 5-00 A.M. or in the morning. It shows that P.W.1 and P.W.2 both were not present at the time of incident. They were deposed before the court where there were major contradictions on the point of this issue. It is also unnatural that they were suddenly reached at the time of incident and seen that five persons were using fire to burn the place of occurrence.

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16It is also pertinent to mention here that they were unable to explain in their examination that when they saw that five accused were using fire by clothes rods with kerosene oil to destroy his property.

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17It is also pertinent to mention here that if the incident is of midnight at 12-00 P.M. there was no source of light to see the accused persons and identified them. Appellants are the residence of the same village and they knows when they set fire on 'Kandi' and woods 'Ballies'. Anybody can identify them then why five persons will go there to do this act. It is also unnatural and unbelievable. In the statements of P.W.1 and P.W.2 it is clearly admitted that villagers of the village came at the place of incident after three hours how the P.W.1 and P.W.2 will reach there to see the place of occurrence at the time of incident.

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18Learned counsel for the appellants further submitted that in case of 307 I.P.C. and in this case compromise was taken place between the parties and complainant and his witnesses and accused got acquitted but they refused to get compromise in this case due to previous enmity and false statements given before the court. Learned counsel for the appellants also submitted that occurrence was not done at the place of residence hence no offence under Section 436 I.P.C. is made out against the appellants. Appellants Kalloo and Cheta have already been died. There is no specific allegation against the appellants-Mahesh, Ram Singh and Gajadhar. Therefore, on this ground they are also liable to be acquitted.

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19Learned counsel for the appellants further submitted that at the time of conviction they have suffered and languished in jail for more than two months unnecessarily. The appellants have no criminal history after and before the incident and till date.

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20In the backdrop of above, the appeal is allowed. The impugned judgment and order dated 8.12.1982 is hereby set aside. The appellants-Mahesh, Ram Singh and Gajadhar are acquitted under Section 436 I.P.C. Their bail bonds are cancelled and sureties are discharged.

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21Copy of this order along with lower court record be transmitted to the court concerned for information and compliance. Order Date :- 22.10.2018 OP

Kaloo and Others v. State

Case brief

What is this about?

What did the court decide?

Kaloo and Others v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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