The High Court allowed a criminal appeal by two appellants convicted of setting fire to a house under IPC 436, quashing the conviction and sentence due to the Investigating Officer not being examined and significant inconsistencies among prosecution witnesses.
Judgment of conviction and sentence set aside and accused discharged from bail liability
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.187 of 2009
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Madan Chaudhary son of Bindeshwar Chaudhary, Resident of villageVishanpur, PS-Katra, Distt-Muzaffarpur
... ... Appellant/s Versus STATE OF BIHAR ... ... Respondent/s ====================================================== with Criminal Appeal (SJ) No. 708 of 2008 ====================================================== Bindeshwar Chaudhary, son of Late Nathuni Chaudhary, Resident of villageVishanpur, PS-Katra, Distt-Muzaffarpur.
... ... Appellant/s Versus STATE OF BIHAR ... ... Respondent/s ====================================================== Appearance : (In Criminal Appeal (SJ) No. 187 of 2009+ 708 of 2008) For the Appellant/s : Mr. AjayThakur, Mr. Nilesh Kumar, Mr. Amir Alam, Mrs. Swati Sinha, Advocates. For the Respondent/s : Mr. S. A. Ahmad, APP ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
21-12-2018
Before coming to main track, the ancillary event visualizing from the lower court record should be recorded first in order to properly appreciate as to why these two appeals are being disposed of by a common judgment.
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both the appellants, namely, Bindeshwar Chaudhary (Cr. Appeal No. 708/2008) and Madan Chaudhary (Cr. Appeal No. 187/2009) who were father and son.
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a new Sessions Trial has been registered bearing Sessions Trial No. 465/2008, wherein lastly, as is evident from the order dated 11.09.2008, appellant/accused, Madan Chaudhary surrendered. Fortunately, in both the Sessions Trial No after examination of PW-6, not even a single witness has been examined, that means to say, whatever materials brought up against the accused persons/appellants, collected in presence of both the accused who were facing Session Trial No. 285/2008 conjointly. That means to say, evidences whatever, was in accordance with Section 273 of the CrPC.
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Additional Sessions Judge, Muzaffarpur, has been found guilty punishable under Section 436 IPC and sentenced to undergo RI for 10 years as well as to pay fine of Rs. 5000/- in default thereof, to undergo one year RI additionally relating to Sessions Trial No. 465/2008. That being so, both the appeals have been heard conjointly and are being disposed of by a common judgment.
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aforesaid background, they all could be identified to be the victim. Before considering their evidence, it is also to be noted down that I.O. has not been examined. However, its repercussion is to be seen at the relevant juncture of the judgment.
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Parmeshwar Sah along with others are her neighbours. In para9, she had stated that at the time of occurrence, she was sleeping inside her house. When she perceived heat of flame, she came out. At that very time, the house was under flame. She along with her mother-in-law raised alarm whereupon villagers came. Her belongings had completely got burnt. Thereafter, villagers extinguished the fire. Then has denied the suggestion that on account land dispute, this case has been instituted.
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flank. Save and except, house of the accused, none others’ house lies within vicinity of 2-4-5 Laggi. Then she has stated that the house of accused persons lies at a distance of 4-5 hands away from her house. In para-7, she has stated that she was sitting at her Darwaza. Her daughter-in-law was inside the house. All of a sudden, she raised cry. Fire was lit at eastern-northern corner. She rushed there and found the house burning. Whereupon, she also raised alarm. So many persons came and extinguished the fire. In para-8, she has stated that she had gone to the police station alone. She had disclosed the occurrence before Darogaji. Then thereafter, she returned back. After 2-3 days, police came. Police had not seized any article. Police had seen burnt articles and then left. In para-9, she has stated that the land over which her house stood happens to be purchased land. But, she is unable to disclose from whom it was purchased. At para-10, she has shown boundary of the PO as East- Field of Mukhia, WestField, North-House and field of Bindeshwar Chaudhary, SouthField of Jai Mangal. In para-11, she has denied the suggestion that in order to implicate the accused persons, she had, herself, lit fire in her house and then instituted this case.
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while he was returning after giving milk at a dairy and reached near the house of Bindeshwar, he had seen Bindeshwar and Madan running after litting fire in his house after sprinkling K- oil. Till the time he reached at Darwaza, his house was completely gutted down. His Bhabhi resides in that house. Then he detailed the articles kept therein. Then his mother had gone to police station and registered the case. He has further stated that he stood as a witness over the aforesaid written report (exhibited). Identified the accused. During cross-examination, he has shown the boundary of the PO as East- field of Pappur Narayan Thakur, West-House of Ram Sakal Chaudhary, Northhouse of Bindeshwar Chaudhary and South- field of Jai Mangal. He further declined to divulge Khata, Khesra and area of the PO land. In para-5, he has stated that he has seen the accused persons litting fire and then, fleeing therefrom from a distance of two Laggi. When he reached near his house, it was already under flame. At that very moment, none of the villagers was present. He had not raised alarm. He simply took his mother and gone to police station. He is not knowing who had come. Police had come on the same day at about 4-5 PM. In para-6, he has stated that they reside in a house lying west to the house which has been burnt at the distance of 3-4 laggi. In para-7, he has
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stated that I.O. had visited the place of occurrence in his presence but, police had not seized any burnt article therefrom. In para-8, he has stated that about 6-7 months ago, they had quarreled with accused persons relating to aforesaid land. Accused persons had directed to remove the house as the land belongs to them. They have also threatened that if they fail to remove the house, then that will be burnt. Then has denied the suggestion that accused persons have falsely been implicated. He has further denied the suggestion that they themselves after setting their house on fire, got this case filed.
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raised alarm rather, began to weep. After 2-4 minutes of her arrival at the PO, her mother arrived. She had not talked with her mother. In their presence, accused persons had gone inside their house. Then has denied the suggestion that at the instance of her family members, she has deposed falsely.
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and 6, it is evident that she had gone to the place where PW-3 was there. They have raised hue and cry, villagers came and extinguished the fire.
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suggests otherwise and cumulative effect did not justify irrespective of the fact that there happens to be admission by way of suggestion at the end of the appellants that after litting fire in their house, this case has been instituted. Furthermore, from the evidence of PW-5, it is evident that separate establishment has been shown west to the PO, their presence would have been, which they failed. Further, they ought to have disclosed whether both the houses were on same survey plot no., or were on two different plot no. Due to non examination of the I.O., the real picturization of the P.O. lacks, whereupon, the prosecution case is found suspicious one. Moreover, it also caused prejudice to the appellants as they have been deprived of an opportunity to bring on record the objective finding of the I.O. which could have bearing over the fact of the prosecution. Accordingly, judgment of conviction and sentence recorded by the learned lower court is set aside.
(Aditya Kumar Trivedi, J)
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2 issues framed by the court
Whether the evidence unaided by the Investigating Officer could sustain a conviction for setting fire to a house when witness accounts were inconsistent and the IO was not examined.
Whether the non-examination of the Investigating Officer constitutes a material irregularity causing prejudice to the accused given inconsistent prosecution testimony.
4 provisions across 2 enactments
Madan Chaudhary
Bindeshwar Chaudhary
State of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
