The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.1108 of 2014 (In the matter of an application under Sections 401 & 397 of the Criminal Procedure Code, 1973) Lambodar Aruk ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. D.P.Dhal, Sr. Advocate For the Opp. Party : Mr. S. Patra, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 01.07.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision Petition filed under Sections 401 & 397 of Cr.P.C. is directed against the judgment dated 30.10.2014 passed by the learned Additional Sessions Judge, Keonjhar in Criminal Appeal No.48/43 of 2013-11, whereby the judgment of conviction and order of sentence passed by the learned Assistant Sessions Judge, Konjhar on 04.11.2011 in S.T. Case No.78/229 of 2010 has been confirmed. 2. The prosecution case is that on 6/7.03.2010 at about 2.00 P.M. the accused-petitioner trespassed the house of the informant (P.W.4) from back door and set fire on two motorcycles parked there. He ran away from the spot as the father of the informant (P.W.5) shouted calling the accused Lambodar Aruk as to why he did the act. The family members of the informant found both the motorcycles were on fire. The fire could not be controlled as a result of which it penetrated to house and both bikes along with the roof of the house were burnt. The informant lodged the written report before the police resultantly the F.I.R. was registered being Sadar P.S. Case No.62 of 2010. The police investigated the matter and eventually filed the charge sheet. 3. The petitioner was charge sheeted for the alleged offences punishable under Sections 451/436/427 of the IPC. Accordingly, charges were also framed for the said offences. The petitioner was subjected to trial. Page 2 of 9 4. To substantiate the charges brought against the petitioner, the prosecution examined eight witnesses. P.W.4 was the informant whereas P.W.5 is the father of the informant, who was an eye-witness to the occurrence and was examined to corroborate the evidence of P.W.4. P.W.1 is the wife of the informant claimed to be one of the witnesses to the occurrence. P.W.3 is the son of the informant, P.W.2 was also claimed to have seen the occurrence. P.W.7 was the seizure witness whereas P.W.8 was the I.O. 5. The learned trial Court analyzed the evidence brought on record in detail. By supplying emphasis on the evidence of P.W.4 & P.W.5, the learned trial Court found the petitioner guilty for the offence under Sections 451/436/427 of the IPC. Relevant part of the evidence of P.W.4 & P.W.5 are highlighted to appreciate the gravamen of the offence committed by the petitioner. In the examination-in-chief, P.W.4 had stated as under: “1. I know the accused. I am the informant of this case. At about 2 A.M. in the night of 6/7.3.2010. We have purchased one motor cycle Splender Plus. Another motor cycle was kept which belongs to my brother-in-law. Both the motor cycles were kept in a passage connecting our mina door of the house. The passage is within the house. My father Page 3 of 9 raised hullah stating that lembu set the vehicles on fire by a matchstick. We could not control the fire. The house caught fire and the house and the motor cycles were burnt by fire.” In the cross-examination, the said witness had inter alia stated as under: “4. It is a fact that I have not stated before the police that the motor cycle was set fire with a matchstick. My house is about 10 Kms. Away from the Outpost. I went to the police station on a motor cycle. It took half an hour to reach at the O.P. In the morning of 8th March, 2020, I lodged the F.I.R. Police visited the spot on the same day. There was marriage proposal of my youngest sister with Lulu Barik of Bhuinpur. It is a fact that about 8/4 years back there was proposal for marriage of my sister with the nephew of Taula Rout. It is not a fact that the accused is a Gumasta of Taula Rout. 6. It is not a fact that due to failure of the marriage proposal with the nephew of Taula Rout, I fabricated this case against the accused and that I can not say who set fire to my house.” 5. 6. P.W.5, the father of the informant and eye-witness to the occurrence in the examination-in-chief had held as under: “1. I know the accused. The informant is my son. The incident took place in the night at about 2 A.M. In the night the accused came and set fire to the motor cycles which were kept inside our house. Both the motor cycles were burnt along with our house. I told the family member about of burning of motor cycles and house. The villagers put out the fire. I lost my consciousness after my family members got up and after narrating the same to them and the house when caught fire I lost my consciousness.” In the cross-examination, the said witness had stated as under: Page 4 of 9 “4. The accused came through the back door and set fire to the motor cycles and ran away and I started calling him Lembu, “Lembu” we used fire wood for our cooking. 5. There was marriage proposal of my daughter who is nephew of Taula Rout and the accused is working under Taula Rout. The said marriage proposal failed. I do not have good relationship after the failure of the marriage proposal, we that that Lembu caused the failure of the proposal. 6. It is not a fact that out of that grudge, we fabricated this case falsely against the accused.” 7. Analysis of the testimony of the aforementioned two witnesses unequivocally leads to the conclusion that there was certain past enmity between the petitioner and the family of the informant. Secondly, the petitioner had set fire to the motor cycles which were parked near the house. The accused apparently had an intention to destroy the motor cycles. The evidence had come on record to establish that the fire could not be doused despite efforts, and uncontrolled fire spread over and engulfed the house where the vehicles were parked. In the evidence of P.W.4 he had stated that none was present in the house which was burnt, everybody was in the adjacent house. Therefore, safely it could be inferred that the house which had come under fire due to burning of the motor cycles parked nearby was not in the dwelling house Page 5 of 9 intended to be burnt by the petitioner. The petitioner-accused was aiming at setting the motorcycles at fire. 8. On the face of said evidence on record, the learned trial Court convicted the petitioner for the offence punishable under Sections 451, 436 & 427 of the IPC along with other offences and imposed various sentences. The petitioner aggrieved by the judgment of conviction and sentence, filed Criminal Appeal before the learned Additional Sessions Judge, Keonjhar. The learned Additional Sessions Judge, Keonjhar vide his judgment dated 30.10.2014 had confirmed the conviction and sentence imposed by the learned trial Court inter alia returning the following findings: “7. I have carefully gone through the evidence on record and found that the witnesses have clearly stated that “on 6/7.03.2010 night two motor cycles and the house of Benudhar Aruk (P.W.5) were set on fire. The photographs of the motor cycles and photograph of the house after the occurrence are marked Ext.5; Ext.6 and Ext.7 which speaks that the motor cycles and the house were burnt. Police visited the spot after lodging of F.I.R. and found those were burnt. Now the question remains as to how the motor cycles and the house were burnt. The occurrence took place after midnight when all the people in the village were asleep. When the occurrence took place after midnight, it is not possible for anyone to see who set fire to the motor cycles as all the villagers must be asleep at that time. It is brought out in cross-examination from Benudhar Aruk (P.W.5) that Page 6 of 9 there was no door leaves both on the opening of front side and backside of the house. This fact is also apparent from the photographs. When there was no door leaves, there was no obstacle for Benudhar Aruk (P.W.5) to see as to who set fire to the motor cycles. them about Benudhar Aruk (P.W.5) ha clearly stated that in the night the accused came and set fire to the motor cycles which were kept inside their house. Both the motor cycles and the house were burnt. He told the family members about burning of motor cycles and the house. The villagers put out the fire. He lost consciousness after his family the members got up and he narrated occurrence. Nothing substantial is brought out in cross- examination to disbelieve the evidence of the witnesses. The informant Parsuram Aruk (P.W.4) has stated in his examination-in-chief that in the night his father raised haullah stating that Lembu set fire the vehicles by a matchstick. Nandini Barik (P.W.1) has stated in her examination-in-chief that in the night of occurrence she heard haullah of her father-in-law Benudhar Aruk (P.W.5) shouting “LAMBODAR GADI GHARA JALIDELA”. Loknath Aruk (P.W.3) the grandson of Benudhar Aruk (P.W.5) has stated in his examination-in-chief that in thenight of occurrence his grandfather shouted “GHARA PODIGALA GADI PODIGALA” and was uttering the name of the accused. The evidence of Benudhar Aruk (P.W.5) is corroborated in some material particular by these witnesses.” 9. Heard Mr. D.P. Dhal, learned Senior Advocate appearing for the petitioner and Mr. S. Patra, learned Additional Standing Counsel appearing for the State. 10. The prosecution story solely rests on the versions of P.Ws.4 & 5. The evidence of these two witnesses draws corroboration from the Page 7 of 9 evidence of P.Ws.2 & 3. All the witnesses were the family members. It had come on record that there was some past enmity due to some failed marriage proposal in the family. It had also been proved on record that the petitioner had burnt two motor cycles parked near the house. Attempts were made to douse the fire, however, the attempts were futile and the house also got engulfed under fire. Therefore, it is apparent that the intention of the petitioner was only to burn the motor cycles. However, eventually the house also engulfed under fire. In the light of aforementioned evidence on record, I am of the considered view that the petitioner is only found guilty for the offence punishable under Section 435 of the IPC but not of offence punishable under Section 436 of the IPC. Accordingly the petitioner is acquitted from the charges of offence punishable under section 436 IPC. Therefore, the sentence imposed against the petitioner for the said offence is also liable to be se-aside. 11. Mr. D.P. Dhal, learned Senior Advocate submitted that the petitioner had suffered custody from 09.03.2010 to 24.05.2010 and subsequently from 04.11.2011 to 07.12.2011. Therefore, it appears that the petitioner has already undergone imprisonment for a period of about Page 8 of 9 four months without remission. Taking into consideration the aforementioned, I am of the view that the sentence of imprisonment awarded by the learned Court below for offence under section 435 IPC is liable to be modified to that of sentence already undergone by the petitioner. Accordingly, the sentence awarded against the petitioner for offence under Sections 451/427 of the IPC also stands modified except the fine amount. Insofar as the fine amount imposed on the petitioner for alleged offence under Section 435 of the IPC is concerned, the same is altered and the petitioner is liable to pay a fine of Rs.20,000/- in default of making payment, the petitioner shall undergo further R.I. for a period of one month. The fine amounts imposed on the petitioner for the aforementioned offences shall be deposited by him to be disbursed to the informant as compensation in accordance with the provision of Section 357 of Cr.P.C.
Decision
12. The CRLREV is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 19-Jul-2024 09:46:21 Page 9 of 9