1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J) No. 692 of 2005 ------ 1. Manu Rai son of Late Pandeshwar Rai 2. Ugan Rai son of Late Pandeshwar Rai 3. Lakhi Rai son of Late Pandeshwar Rai 4. Sakhi Rai son of Late Pandeshwar Rai All resident of village Kushmaha, P.S-Ramgarh, District-Dumka ……Appellants Versus The State of Jharkhand ....…Respondent ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellants : Mr. Rajiv Ranjan Mishra, Amicus Curiae For the State : Mr. Jitendra Pandey, A.P.P ------ ORAL JUDGMENT IN COURT Order No: 10/ Dated: 14.02.2025 This Criminal Appeal has been filed on behalf of the appellants by challenging the judgment of conviction and sentence dated 26.05.2005 passed by Shri Rama Shankar Shukla, then learned 4th Additional District Judge (F.T.C), Dumka in Session Case No. 59 of 2004/19 of 2004 arising out of Ramgarh P.S. Case No. 29/2003 (G.R No. 317/2003) by which the appellants namely Manu Rai, Ugan Rai, Sokhi Rai and Lakhi Rai have been convicted for the offence under Section 436/34 of the Indian Penal Code and sentenced to undergo R.I for five (05) years and to pay the fine of Rs. 5,000/- each and in default of payment of fine, they have been further directed to suffer R.I for one month. Although, the learned Court below has acquitted the eight (08) other accused persons namely Babulai Rai, Jagdish Rai, Sanichariya Devi, Mitni Devi, Asha Devi, Ramiya Devi, Usha 2 Devi and Murti Devi for the offences under Section 436/34 of I.P.C. 2. The prosecution case, in brief, is that on 09.04.2003 at about 6 P.M.in the evening, the accused persons namely Manu Rai, Lakhi Rai, Sokhi Rai, Ugan Rai (i.e. the appellants) and one Babulal Rai and Jagdish Rai and the wives of all the above six (06) persons set the house of informant on fire. However, the informant was unable to get the names of wives of the six (06) accused persons. It is further alleged that the above accused persons have asserted that the informant has helped one Savitri Devi wife of Nakul Rai, although, he had not helped any person or caused loss to anyone. It is also alleged that the persons of nearby village Disom had cut paddy of the above persons and as a result of which, the accused persons and their wives have put his house on fire and due to which the clothes, cereals and wood worth approximately Rs. 10,000/- had been burnt which was kept inside the house of the informant. 3. Mr. Rajiv Ranjan Mishra was appointed as an Amicus Curiae in this case in view of the fact that none had appeared on behalf of the appellants on 21.10.2024 and 21.11.2024 and also on 07.01.2025 and as such, on 07.01.2025 Mr. Rajiv Ranjan Mishra, learned counsel was appointed as Amicus Curiae in this case to assist this Court vide order dated 07.01.2025. 4. Heard Mr. Rajiv Ranjan Mishra, learned Amicus Curiae appearing on behalf of the appellants and Mr. Jitendra Pandey, learned counsel appearing on behalf of the State. 5. Learned Amicus Curiae for the appellants has submitted that the impugned judgment of conviction and sentence passed by the learned Court below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Trial Court has 3 convicted the appellants on mere surmises and conjectures. It is submitted that there is no eye witness of the occurrence. It is further submitted that the informant has falsely implicated the appellants as he was on inimical terms with the appellants on account of fact that the appellant no. 1 had given evidence in one case against the wife of PW-2 in the case instituted for putting the house on fire. It is further submitted PW- 2 and PW-3 are not the eye witness of the occurrence as PW-2 was sleeping in his house in drunken condition and he was informed about the occurrence by his son Bhim Soren who had been examined as PW-3 and thereafter, they had gone to the place of occurrence and thus, PW-2 and PW-3 are not the eye witness of the occurrence and hence, the evidence of PW-2 and PW-3 is not reliable. It is submitted that PW-5 is a hearsay witness and had not seen the occurrence and as such, the evidence of PW-5 is not reliable. It is further submitted that PW-6 is one Dropadi Devi who is the wife of the informant and she had been setup by the informant in this case to depose against the appellants. It is submitted that the informant has neither given the name of his wife Dropadi Devi in the F.I.R for having seen the occurrence nor he had taken the name of his wife to be present along with him while he was examined as PW-1. Thus, PW-6 is also not the eye witness of the occurrence and hence, the evidence of PW-6 is also not reliable. It is submitted that PW-4 Jai Narayan Sharma who is the part I.O of this case who has merely submitted charge sheet in this case against the appellants and eight (08) other accused persons who have been acquitted by the learned Court below. 6. It is further submitted that PW-4 (i.e. the part I.O) had 4 admitted during his cross-examination, that he had neither recorded the statement of any witnesses in this case nor he had inspected the place of occurrence nor he was present in the concerned police Station when the F.I.R was instituted against the appellants. Thus, the evidence of PW-4 is also not reliable. It is submitted that main I.O of this case had not been examined in this case and no burnt material had been seized by the police. It is submitted that non-examination of the main I.O has caused serious prejudice to the appellants as they could not confront him on the point of seizure of any burnt materials or for taking contradiction in the evidence of prosecution witnesses. It is submitted that even the brother and the nearby persons of the informant had not been examined in this case. It is submitted that even the informant is not the eye witness and he has falsely implicated the appellants for burning the materials, cloth etc. of his house and hence, the allegations of the informant are false and concocted. It is further submitted that for the same set of evidence, these four (04) appellants namely Manu Rai, Ugan Rai, Sokhi Rai and Lakhi Rai have been convicted whereas the eight (08) other accused persons namely Babulai Rai, Jagdish Rai, Sanichariya Devi, Mitni Devi, Asha Devi, Ramiya Devi, Usha Devi and Murti Devi have been acquitted by the learned Trial Court and no reason has been given by the learned Court below as to why these appellants have been convicted for the same set of evidence led on behalf of the prosecution and as such, the impugned judgment and order of sentence may be set aside and this Criminal Appeal may be allowed. 7. On the other hand, learned A.P.P has submitted that the impugned judgment and sentence passed by the learned Court below is fit and proper and no interference is required. 5 It is submitted that the informant is the eye witness of the occurrence and he had seen the appellants and eight other accused persons were ablazing fire in the house of the informant and as a result of which, cereals, cloth, wood of his house worth approximately Rs. 10,000/- were burnt. It is submitted that PW-1 is fully supported the prosecution case during his evidence and which is corroborated from the evidence of PW-2, PW-3, PW-5 and PW-6 namely Babulal Soren, Bhim Soren, Sukrumuni Mohlin and Dropadi Devi respectively. It is submitted that PW-4 is the part I.O of this case who has also supported and corroborated the prosecution case and thus, the evidence of PW- 1 is fully supported the evidence of I.O (i.e. PW-4). It is submitted that non-examination of other I.O is not fatal to the prosecution case as the prosecution has proved the F.I.R and the evidence against the appellants. It is further submitted that PW-6 is the wife of the informant and she is also an eye witness of the occurrence and thus, the learned Court below has committed no illegality while passing the impugned judgment and sentence against the appellants and hence, there is no merit in this Criminal Appeal and as such, this Criminal Appeal may be dismissed. 8. Perused the Lower Court Records and considered the submission of both the sides. 9. It transpires that the informant Ram Prasad Rai had lodged the F.I.R against the appellant namely Manu Rai, Ugan Rai, Lakhi Rai and Sakhi Rai and one Babu Lal Rai and Jagdish Rai and also against the wives of the above six (06) persons on 10.04.2003 for the occurrence taking place on 09.04.2003 at 6 P.M in the evening. 10. However, the F.I.R was seen by the learned C.J.M, In-Charge on 12.04.2003 i.e. after delay of two (02) days and 6 there is no such explanation for sending the F.I.R to the learned Court below after the delay of two (02) days. Although, the informant had submitted written application before the Officer-in- Charge on 10.04.2003 and even the date has not been mentioned by the informant while putting his signature rather, the endorsement has been made by one Kundan Kumar Singh, Officer-in-Charge, Ramgarh on 10.04.2003 and on the basis of written application submitted on 10.04.2003 the police had instituted Ramgarh P.S Case No. 29/03 under Section 147/436 of the Indian Penal Code against the appellants and two others namely Babu Lal Rai and Jagdish Rai. 11. The police, after completing investigation, had submitted chargesheet against the appellants and eight others named above on 08.10.2003 for the offences under Section 147/436 of the I.P.C and thereafter, the learned C.J.M, Dumka had taken cognizance on 11.10.2003 against the appellants and eight others under Section 147/436 of the I.P.C. 12. After supplying the police paper to the appellants and other accused persons, the case was committed to the Court of Sessions. 13. Thereafter, the charges were framed against the appellants and eight others on 06.04.2004 for the offences under Section 436/34 of the I.P.C and Section 147 of the I.P.C by Sri R.M Rai, then learned 4th Additional Sessions Judge, Dumka and to which they pleaded not guilty and claimed to be tried. 14. During the trial, the prosecution got examined six (06) witnesses who are as follows:- (i) PW-1 is Ram Prasad Rai (i.e. the informant), (ii) PW-2 is Babu Lal Soren, (iii) PW-3 is Bhim Soren (i.e. the son of Babu Lal 7 Soren aged Around 16 years), (iv) PW-4 is Jai Narayan Sharma (i.e the A.S.I), (v) PW-5 is Sukarmani Mohlin (i.e. the wife of Babu Lal Soren), (vi) PW-6 is Dropadi Devi (i.e. the wife of informant). 15. The prosecution in support of its case had marked the following documents as the Exhibits:- (i) Exhibit-1 is the signature of Ram Prasad Rai (PW-1) on fardbeyan, (ii) Exhibit-2 is the formal F.I.R, (iii) Exhibit-3 is the endorsement on F.I.R. 16. Thereafter the appellants and eight (08) other persons were examined under section 313 Cr.P.C on 04.03.2005 by the learned Additional Sessions Judge-IVth, Dumka and to which the appellants and eight (08) other persons denied the circumstances put forth before them. 17. No defence witness was examined on behalf of the appellants. 18. However, the following documents were marked as exhibit on behalf of the defence which are as follows:- (i) Exhibit-A is the certified copy of P.C.R Case No. 120/03 instituted by Narayan Rai son of Sokhi Rai (i.e. Appellant No.4), (ii) Exhibit-B is the certified copy of charge sheet of Ramgarh P.S. Case No. 97/02 instituted by Lakhi Rai (i.e. Appellant No. 3). 19. Thereafter, the learned court below has convicted and sentenced the appellants as mentioned above and had acquitted the eight (08) other persons as already mentioned above. 20. In view of the above, the appreciation of prosecution 8 witnesses is required to be done. 21. Before scrutinizing the evidence of PW-1 (i.e. the informant), it would be relevant to scrutinize the evidence of PW-2 Babu Lal Soren who has stated during his evidence that while he was in his house in drunken condition and at around 6 P.M he was awakened by his son who had informed him that the fire has been caught in someone house. Thereafter, he went to the place of occurrence and had seen the house of the informant Ram Prasad Rai in burning condition. 22. During cross-examination, he admitted that he had not seen anyone for causing fire/putting the house on fire of the informant and the police have not recorded his statement. He also admitted that Gori Mohlin had instituted a case of fire against his wife and in that case Manu Rai i.e. Appellant No. 1 had given evidence in favour of the said Gori Mohlin. 23. Thus, from scrutinizing the evidence of PW-2, it is evident that he had not seen the appellants for putting the house on fire and he had not stated the name of any person to be present near the house of the informant. It is also evident that his statement was not recorded by the police under Section 161 Cr.P.C and hence, the evidence of PW-2 is not reliable. 24. PW-3 is Bhim Soren who is the son of Babu Lal Soren (i.e. PW-2) and who stated during his evidence that the appellants namely Manu Rai, Ugan Rai, Sokhi Rai and Lakhi Rai came to the house of the informant for quarelling as they had previous enmity with them. Thereafter, the house of the informant was put on fire and then he got awoke his father but he is not aware as to what materials were burnt. 25. During cross-examination, he claimed to have seen only the burnt door but when it was taken out, it was found to have not 9 been burnt. He also admitted to have not seen any burnt articles. He also admitted that police have not recorded his statement. 26. Thus, from scrutinizing the evidence of P.W-3, it is evident that his evidence is contradicted by the evidence of P.W-2. It is further evident that he had claimed to have seen the appellants quarelling with the informant but the informant at the time of lodging the F.I.R and at the time of his evidence before the learned Court below as P.W-1 has not stated about the presence of P.W-3. Thus, the evidence of P.W-3 is also not reliable and cannot be used for convicting the appellants. 27. P.W-5 is Sukarmani Mohlin who is a hearsay witness and stated to have heard alarm at about 4 P.M for dispute between Ram Prasad Rai i.e. the informant and Manu Rai i.e. appellant no. 1 but she is not aware about the reason of dispute. She further stated during her evidence that she had seen one house in burning condition but she is not aware as to who had caused fire in the house of the informant. 28. During cross-examination, she admitted that Manu Rai i.e. appellant no. 1 had given evidence against her husband in one case. She also admitted that she is giving evidence for the first time in Court and her statement was not recorded by the police. She also admitted to have not seen appellant no. 1 Manu Rai and the informant Ram Prasad Rai while quarreling with each other. 29. Thus, from scrutinizing the evidence of P.W-5, it is evident that P.W-5 is a hearsay witness and hence, her evidence cannot be relied upon. 30. P.W-6 is Dropadi Devi who is the wife of the informant Ram Prasad Rai and stated during her evidence that she heard alarm at about 4:00 P.M while she was returning from the shop. She claimed that the appellants namely Manu Rai, Ugan Rai, 10 Lakhi Rai and Sakhi Rai, Babu Lal Rai and Jagdish Rai and their wives came to her house and had abused the informant due to which her husband fled away and thereafter, they had put their house on fire. 31. During cross-examination, she admitted that the police had not seized any burnt materials and no seizure list was prepared. She claimed that articles like doors, utensils, Chokhat etc. were burnt. She also claimed that around 100-200 villagers had assembled but no articles were taken out. She also admitted that she is not aware of the name of any person who were extinguishing the fire. She also claimed that police had arrived at the place of occurrence on the same day at 4 P.M but she was not aware as to who had given fard beyan before the police. 32. Thus, from scrutinizing the evidence of P.W-6 i.e. the wife of the informant, it is evident that she was set up by the informant as neither the informant was present at the time of lodging the F.I.R nor at the time of giving evidence before this Court. Even the time of occurrence is contradictory because in the F.I.R, the informant had claimed that his house was burnt at around 6 P.M whereas, P.W-6 i.e. the wife of the informant had stated that her house was burnt at around 4 P.M which is contradictory to each other. Thus, the evidence of P.W-6 is not reliable. 33. P.W-1 is Ram Prasad Rai i.e. the informant of this case who stated during his evidence that on 09.04.2003 at around 6 P.M while he was at home then Manu Rai, Ugan Rai, Lakhi Rai and Sakhi Rai i.e. the appellants and one Babu Lal Rai and Jagdish Rai and their wives came to his house and abused him and asked each other to assault the informant due to which he went away from his house. Thereafter, they again came to his house and started 11 abusing him and put his house on fire. He claimed that the reason of occurrence is that people of Disom Party had cut the paddy crop from the land of one Savitri and they had suspected that Ram Prasad Rai i.e. the informant is also involved in it and as a result of fire, three (03) bags of paddy, two (02) bags of rice, cloth, utensils etc. were burnt for the loss of Rs. 10,000/-. He proved his signature on the written application which is marked as Exhibit-1. 34. During cross-examination, he admitted in Para-2 that there was no other person present near his house at the time of occurrence. He further stated that when the miscreants abused him then he fled away at a distance of 50 hand but he had not gone to the house of his brother which is situated at a distance of around 400 hands. He claimed that several persons including Babu Lal Soren i.e. the informant had assembled at the place of occurrence and even his wife Draupadi Devi had arrived to see his burnt house. He further claimed that the fire took place in the night till 9:00 P.M but none had extinguished the same. He further admitted during his cross-examination that Lakhi Rai had instituted a criminal case against him and other 14 accused persons after the occurrence and for which, a case under Section 107 Cr.P.C was also instituted. However, the said case under Section 107 Cr.P.C was dropped. He also admitted that Narayan Rai had instituted a case against him and six (06) other persons for snatching cycle and jewellery. He further admitted that his father had instituted a case against the accused persons with regard to Jamabandi No. 7 and which was decided in favour of the accused persons. 35. Thus, from scrutinzing the evidence of P.W-1 i.e. the informant, it is evident that during his entire deposition, he has not 12 cited the presence of P.W-3, P.W-5 and P.W-6 namely Bhim Soren, Sukarmani Soren and Draupadi Devi respectively. He further admitted that Jamabandi No. 7 was decided in favour of the accused persons i.e. the appellants and which was decided against his wife. Therefore, it is evident that the informant had instituted this case in retaliation after losing Jamabandi No. 7 by his father. Thus, the evidence of P.W-1 i.e. the informant is suspicious and cannot be relied upon for convicting the appellants. 36. P.W-4 is Jai Narayan Sharma who is the part I.O of this case and has proved the formal F.I.R marked as Exhibit-2 (due to error it was marked as Exhibit-2 instead of Exhibit-1) and also proved the charge sheet marked as Exhibit-3. He further proved the written application in the writing of Kundan Kumar Singh marked as Exhibit-2 (it should be read as Exhibit-3). 37. During cross-examination, he admitted that he had neither recorded the statement of any witnesses nor had inspected the place of occurrence. 38. Thus, from scrutinizing the evidence of P.W-4, it is evident that he is a formal witness and had submitted the charge sheet against the appellants but he had neither visited the place of occurrence even at the time of submitting charge sheet nor he had recorded the statement of any prosecution witnesses. Thus, evidence of P.W-4 is not reliable and cannot be used for convicting the appellants. 39. It is further evident that the main I.O of this case has not been examined in this case and as a result of which, prejudice has been caused to the appellants as they could not contradict him on the point of seizure of any burnt articles and also on the point of the presence of other prosecution witnesses. 13 40. It is further evident that the Trial Court had not considered the documents marked by the defence marked as Exhibit-A and Exhibit-B respectively. 41. Exhibit-A is the certified copy of P.C.R Case No.120/03 instituted by Narayan Rai son of Sokhi Rai (i.e. Appellant No.4) against the seven (07) persons including the informant Ram Prasad Rai and which was instituted on 01.04.2003 before the learned C.J.M, Dumka under Sections 147, 323, 354, 379, 384, 504, 120-B/34 of I.P.C which is also evident from the order sheet dated 01.04.2003 by the learned Court of C.J.M, Dumka. 42. It appears from the order sheet dated 11.11.2003 that the learned C.J.M, Dumka had taken cognizance against the appellants and other accused persons under Section 323, 379 of I.P.C. 43. Exhibit-B is the certified copy of charge sheet of Ramgarh P.S. Case No. 97/02 instituted by Lakhi Rai (i.e. Appellant No. 3) for the offences under Sections 147, 452, 341, 342, 323 of I.P.C. 44. Thus, both the above documents i.e. Exhibit-A and Exhibit-B reveal that same were instituted prior to lodging of F.I.R by the informant. 45. It is further evident that the learned Court below has failed to consider the defence of the accused persons by which they have tried to establish that the informant namely Ram Prasad Rai was an accused in P.C.R Case No. 120/20003 and also an accused in Ramgarh P.S. Case No. 97/2002 which was instituted by Sokhi Rai (i.e. Appellant No. 4 and Lakhi Rai (i.e. Appellant No. 3) respectively much prior to lodging of the F.I.R by the informant which has not been considered by the learned Court 14 below. 46. In view of the discussions made above, This Court finds that the prosecution has miserably failed to prove the charges against the appellants. 47. Under the circumstances, the judgment of conviction and sentence dated 26.05.2005 passed by Shri Rama Shankar Shukla, then learned 4th Additional District Judge (F.T.C), Dumka in Session Case No. 59 of 2004 and 19 of 2004 arising out of Ramgarh P.S. Case No. 29/2003 (G.R No. 317/2003), are set aside and the appellants namely Manu Rai, Ugan Rai, Sokhi Rai and Lakhi Rai are acquitted for the offences under Section 436/34 of I.P.C and the appellants are discharged from the liability of their respective bail bonds. 48. Thus, this Criminal Appeal (S.J) No. 692 of 2005 is allowed. 49. Let the original Lower Court Records and judgment of this Court be sent back to the learned Court below at once by the office. 50. Mr. Rajiv Ranjan Mishra, learned Amicus Curiae has sincerely assisted this Court as an Amicus Curiae and as such, the learned Member Secretary, JHALSA is directed to pay a sum of Rs. 5500/- to Mr. Rajiv Ranjan Mishra, learned Amicus Curiae to assist this Court with the permission of Hon’ble Executive Chairman, JHALSA. 51. Let a copy of this judgment be also sent to the learned Member Secretary, JHALSA for the needful. (Sanjay Prasad, J.) Avinash/ N.A.F.R