Hazarat Sheikh & Anr. vs The State Of Jharkhand & Anr.

By Court:- Heard Mr. Mukesh Kumar Mehta, learned counsel for the appellants and Mr. Prabir Kumar Chatterjee, learned Spl.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 15.09.2005, passed by learned Sessions Judge, Pakur, in Sessions Case No. 141 of 2003, whereby and whereunder the appellants have been convicted for the offence under Section 436 of the I.P.C. and sentenced to undergo R.I. for 4 years for the said offence.

The factual matrix giving rise to this appeal is that on the night of 10/11 May, 2003, the informant, Moiuddin Sheikh was sleeping in the courtyard of his house. It is alleged that the southern portion of the informant’s house was found burning at about 12:00 o’clock at night and the flames were spreading. It is further alleged that the informant immediately came out into the courtyard and saw the accused persons were fleeing towards north-east. It is alleged that on 28.04.2003, there was some exchange of hot words between his brother Jalaluddin and the accused, Hazarat Sheikh over the issue of raising a wall. It is further alleged that at that very time, the said accused, Hazarat Sheikh had threatened the informant with dire consequences. It is further alleged that on account of the previous enmity, the accused persons have set the informant’s house on fire. As a result of which, the straw roofed mud made house containing food grains inside the room, door, chowki, clothes worth Rs.20,000/-were burnt to ashes.

On the basis of above information, Maheshpur P.S. Case No. 36 of 2003, dated 11.05.2003, was registered for the offence under Section 436 of the I.P.C.

After completion of investigation, charge-sheet was submitted against the accused persons for the aforesaid offence and after taking cognizance the case was committed to the Court of Sessions, where Sessions Case No. 141 of 2003 was registered. The charge was framed and read over and explained to the accused persons to which they did not plead guilty and claimed to be tried.

In the course of trial altogether 13 witnesses have been examined by the prosecution:-

P.W.-8-Kurban Miyan

P.W.-13-Satyendra Kumar Singh, I.O.

Apart from oral evidence, the following documentary evidences have also been adduced by the prosecution:-

On the other hand, defence has examined one witness, namely D.W.-1, Subodh Banerjee.

Documentary evidence of defence is Exhibit-A, C.C. of Plaint of Title Suit No.21/2002 before the Court of Sub-Judge-I, Pakur.

The case of defence is denial from the occurrence and false implication due to previous land dispute and pending of litigations between the parties.

After conclusion of the trial, the impugned judgment was passed, which has been assailed in this appeal.

Learned counsel for the appellants submits that the learned Trial Court has erroneously convicted the appellants without proper appreciation of evidence adduced by the prosecution. It is further submitted that the conviction is primarily based upon the testimony of interested witnesses, who are closely related to the informant, whereas the independent witnesses examined by the prosecution have not supported the prosecution case and declared hostile. Learned counsel further submits that none of the witnesses have claimed to see the appellants, while setting fire to the alleged house of informant. It is contended that the learned Trial Court wrongly accepted the statement of the informant that, on noticing the flames, he came out of his house, saw the appellants fleeing away and chased them for some distance, although such version was not corroborated by any independent eyewitness. It is submitted that the prosecution has failed to establish the guilt of the appellants beyond all reasonable doubt. It is also submitted that the Investigating Officer has also not seized any burnt articles from the place of occurrence and did not recover or produce before the Court any remnants of the alleged burnt radio, thatched roof or other burnt materials and absence of such material evidence creates serious doubt regarding truthfulness of the prosecution story. It is argued that except the oral testimony of interested witnesses, no documentary or material evidence was produced to establish that the alleged occurrence had actually taken place. Learned counsel further submits that although the testimony of a hostile witness may be relied upon to the extent it supports the prosecution, such reliance is permissible only where the testimony is consistent and inspires confidence. The learned Trial Court has overlooked the settled principle of law while appreciating the evidence on record. It is also submitted that the learned Trial Court itself observed in paragraph 31 of the impugned judgment that P.W.s 1 to 4 were hearsay witnesses and not eyewitnesses to the occurrence, yet their statements were wrongly relied upon for the purpose of identification of the appellants. Therefore, impugned judgment and order of conviction and sentence of the appellants is liable to be set aside and this appeal should be allowed.

On the other hand, learned Spl.P.P. has opposed the submissions advanced on behalf of the appellants and submitted that the learned Trial Court has rightly appreciated the oral and documentary evidence available on record and has recorded the conviction on the basis of cogent, reliable and trustworthy evidence. It is submitted that the testimony of the informant is natural, consistent and inspires confidence, and merely because some of the witnesses are related to the informant, their evidence cannot be discarded, when it is otherwise credible. The evidence of hostile witnesses is not liable to be rejected in toto and can be relied upon to the extent it supports the prosecution version. The learned Trial Court has considered the overall aspects of the case in proper perspective and arrived at right conclusion about guilt of the appellants. The impugned judgment does not suffer from any error of law calling for any interference in this appeal, which is devoid of merits and fit to be dismissed.

I have gone through the record of the case along with the impugned judgment in the light of contentions raised on behalf of both side.

The only point for consideration in this appeal is that “as to whether the impugned judgment of conviction and sentence of the appellants suffers from any serious error of law calling for any interference in this appeal?”

Before imparting my verdict on the above point, the relevant provision is required to be quoted at first.

It appears from a bare perusal of Section 436 I.P.C. that the essential ingredients of the said section are:-

It appears that the main prosecution witnesses are P.W.-12, Mainuddin Sheikh, informant of the case and P.W.-13, Satyendra Kumar Singh, the investigating officer. The rest of the witnesses namely, P.W.-1, Jarina Begum, P.W.-2, Mukibul Sheikh, P.W.-3, Noyez Bibi, P.W.-4, Bhadu Sheikh, P.W.-5, Sahida Khatoon @ Silli Khatoon and P.W.-6, Md. Fazlur Rahaman are hearsay witnesses, who arrived at the place of occurrence after hearing hulla and found that a separate house made of mud and roofed by straw of the informant was burning. They came to know from the informant that the present appellants have set fire in his house.

P.W.-7, Alim Sheikh @ Dalim Sheikh and P.W.-8, Kurban Miyan have been declared hostile by the prosecution. Although, they have claimed to arrived at the place of occurrence after hearing hulla and house of the informant was set on fire.

P.W.-9, Kutubuddin Sheikh @ Milan Sheikh is the son of the informant. He was sleeping at the time of occurrence and woke up hearing sound of barking dogs and saw that his another house was set on fire. He has not claimed to identify any of the miscreants, while setting on fire in his house, rather he claims that he came to know from his father that the accused persons have set fire in his house.

P.W.-10, Saifuddin Sheikh @ Mithu Sheikh is also another son of the informant. He has also not seen the accused persons setting fire in his house rather came to know from his father.

P.W.-11, Anawara Khatoon is the wife of the informant. She has categorically stated that the house in which she was sleeping was not set on fire rather her another house was set on fire and seeing the flames, she became unconscious. When she regained consciousness then came to know that all the food grains and articles were burnt to ashes along with radio. Her husband disclosed the name of miscreants.

P.W.-12, Mainuddin Sheikh has instituted the F.I.R. and is informant of this case. According to his evidence, on the date of occurrence at about 12:00 o’clock in the night, he was sleeping in his courtyard at that time he heard noise of barking dogs then woke up and saw that his southern separate house was burning. He rushed towards the house along with his torch then saw that Hazarat Sheikh and Nurul Sheikh (present appellants) were fleeing away. He also followed them along with his son Saifuddin Sheikh @ Mithu Sheikh (P.W.-10), but they managed their escape, then he returned along with his son. This witness has further stated that about 12 to 13 days prior to this occurrence, an scuffle took place with the present appellants in connection with construction of wall and when he protested, he was threatened of dire consequences and will be ruined. According to his evidence in the burnt house, he has stored 15 quintal paddy, 3 quintal rice, 3 quintal wheat, Teesi, Masoor, mustard in total 8 gunny bags which were burnt causing loss of Rs.22,000/- to 24,000/-. He has proved his signature on written report, which is marked as Exhibit-1.

In his cross-examination, this witness clearly admits that civil and criminal cases were instituted against him by the accused persons. Admittedly, this witness has not seen the accused persons (present appellants) while setting fire in his house, rather simply chased them while they were fleeing away.

P.W.-13, A.S.I., Satyendra Kumar Singh has proved the formal F.I.R., which is marked as Exhibit-2. The place of occurrence as stated by this witness is a room 27 x 10 feet and three sides of the room there is verandah about 5 feet. The informant told that paddy, wheat, rice, Teesi, gram etc. food grains and one radio was kept in this room. He found some ashes at the place of occurrence.

In his cross-examination, this witness has given serious jolt to the prosecution case, while admitting that from the place of occurrence he has not seized any burnt article or its remains like food grains, radio, chhappar etc. He also admits that the said house was not a dwelling house rather informant was residing in a separate house.

From the aforesaid discussion of oral testimony of witnesses, it is crystal clear that there is no eye-witness at all claiming to have seen the appellants, while setting fire in the house of the informant. It is also admitted fact that the alleged house was not used for dwelling of human being or custody of property. Not a single witness has been able to testify as to what property was burnt, even hearsay witnesses, who have arrived at the place of occurrence, namely P.W.-1 to P.W.-6 have also not found any food grains burnt lying at the place of occurrence. The investigating officer has also not found any burnt article except some ashes.

As discussed above, in order to prove the offence punishable under Section 436 of the I.P.C., it is necessary that the prosecution must establish basically the offence of mischief. In other words, it is necessary to establish by evidence, (i) that the accused caused destruction of the property; (ii) the act of destruction resulted in diminishing the value or utility of the property or injury to certain person or property; (iii) the accused had committed the act intending or knowing that he was likely to cause loss or damage to any property; (iv) causing of such injury or wrongful act. It is further necessary to establish (v) that the property damaged kept in a building; (vi) that the building was ordinarily used as a human dwelling or as a place for custody of property.

In the instant case, there is no direct or circumstantial evidence at all to establish that the present appellants have set fire in the hut of the informant. It is also not proved that the said building was used for the purpose of human dwelling or for custody of property. The previous enmity between the parties is also an admitted fact. Under above circumstances, the reasons recorded by the learned Trial Court, while convicting the appellants for the offence under Section 436 of the I.P.C. is absolutely beyond the weight of evidence and cannot be sustained in the eyes of law.

Accordingly, the impugned judgment of conviction and sentence of the appellants is hereby set aside and this appeal is allowed.

Appellants are on bail, as such they are discharged from the liability of bail bond and sureties are also discharged.

Pending I.A(s), if any, stands disposed of.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.