U.C. Dhyani, J. (Oral)
1) PW1 Parwati Devi wrote a complaint (Ext. Ka-1) to Station Officer, police station, Banbasa, District Champawat on 15.03.2001, enumerating the facts contained therein that on 14.03.2001, at 09:00 P.M., her brother-in-law Rajendra Bhatt set her house on fire, as a consequence of which, household articles were burnt. Since Rajendra Bhatts wife has died and he wanted to marry with the informant Parwati Devi forcibly, therefore, he set her house ablaze in order to kill her. It was also alleged in the complaint that Rajendra Bhatt harassed her on almost each and every day. Informants life was saved with the intervention of her neighbours.
2) The incident allegedly took place on 14.03.2001, at 09:00 P.M., and the FIR was lodged on 15.03.2001, at 08:30 A.M., in police station, Banbasa. Accused was named in the FIR. The distance between the place of incident and the police station concerned was 4 kms. and hence there appeared to be no delay in lodging the FIR, which was registered under Sections 436 and 506 of IPC.
3) After the investigation, a charge-sheet under Sections 436, 506 of IPC was submitted against accused Rajendra Bhatt. The case was committed to the Court of Sessions. When the trial began and prosecution opened its case, charge for the offence punishable under Section 436 of IPC was framed against the accused on 18.01.2002, by learned Sessions Judge, Champawat. Accused pleaded not guilty to the charge framed against him and claimed trial.
4) PW1 Parwati Devi, PW2 Trilok Singh, PW3 Nain Singh, PW4 Smt. Kamla Bisht and PW5 S.I. Sishupal Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. He also stated that Parwati Devi was cooking food and her house got fire accidentally due to her negligence. DW1 Devi Dutt was examined in defence. After considering the evidence on record, learned trial court, i.e. Sessions Judge, Champawat, convicted accused Rajendra Bhatt under Section 436 of IPC. The convict was sentenced to undergo rigorous imprisonment for ten years alongwith a fine of Rs. 15,000/-, vide judgment and order dated 27.07.2002. Feeling aggrieved against the impugned judgment and order, present criminal appeal was filed by the accused-appellant.
5) Prosecution led the evidence through PW1, who stated in her examination-in-chief, that accused Rajendra Bhatt was her real brother-in-law. He lived separately. He was a widower. PW1s husband was alive, still the accused forcibly wanted to keep her as his wife, to which PW1 declined. Annoyed accused, therefore, wanted to kill PW1. On 14.03.2001, at 09:00 P.M., PW1 was inside her house. Her husband was not present at home. Her children were also present in the house. Accused trespassed into the house. When PW1 screamed, accused set her house on fire. Accused was carrying kerosene jar in his hands. PW1 raised an alarm. Accused fled away from the house. Her house and all the household goods were burnt in fire. The neighbours intervened and saved PW1 and her children. PW1 further stated that currency notes of Rs. 7,000/-, which she kept inside her house, were also burnt. She had earned this money by vending milk. Furniture, bed and utensils were also destroyed. In all, PW1 suffered a loss of Rs. 27,000/-. She went to police station on the next day, submitted her complaint (and got the FIR registered). PW1 identified the accused in open court.
6) In her cross-examination, PW1 stated that she also used to work in the fields and usually returned to her house after finishing her work. On that day, she returned to her house at 04:00 P.M. She started cooking food after the dusk. It took nearly two hours to cook the food. PW1 lived in a thatched hut. Her son was aged 8 years and daughter was aged 5 years. When the incident took place, the children were sleeping. The hut of PW1s father-in-law was situated at a distance of 5 paces from her hut. Rajendra lived with his father. When PW1 raised alarm, villagers also came alongwith her father-in-law. She was illiterate, but could only put in her signatures. Her husband worked in a factory at Moradabad. Her husband came to her once in two months. She made a complaint regarding ill behaviour of the accused to her husband. Nain Singh, Trilok Singh, Harish Bhatt and others came when the incident took place. Investigating Officer prepared site plan on her pointing out. PW1 denied the suggestion that she was telling a lie.
7) A perusal of cross-examination of PW1 will reveal that nothing was brought to the fore to suggest that she was telling a lie. Her testimony could not be treated with suspicion. PW1s oral testimony was acceptable.
8) PW2 did not support the prosecution story and was declared hostile.
9) PW3 supported prosecution story and stated that on 14.03.2001, at 09:00 P.M., when he was sitting at his residence, he saw Rajendra Bhatt coming out of the hut of PW1. Accused was carrying a kerosene jar. Accused trespassed into PW1s hut. Accused poured kerosene oil on the hut of PW1, ignited the match and set the hut on fire. PW2 saw such an incident. PW1 came out of her hut. She raised an alarm. Nain Singh, Harish Bhatt and other villagers came and saved PW1 and her children.
10) In his cross-examination, PW3 stated that the accused set the hut ablaze from outside. PW3 made an attempt to apprehend the accused, but could not succeed in doing so. PW1s house was situated at a distance of 10-15 paces from the house of PW3. When accused entered into the hut of PW1, PW3 did not go there. PW3 went there when accused set her hut on fire and PW1 came out of her hut. PW3 denied the suggestion that he was telling a lie out of enmity with the accused.
11) Thus, in brief cross-examination of PW3, the defence could not point out anything to show that PW3s statement suffered from any infirmity. There was no contradiction or discrepancy between the statements of PW1 and PW3. PW3s oral testimony too was acceptable. A conjoint reading of the statements of PW1 and PW3 has been able to prove the prosecution story. It is proved on the basis of statements of PW1 and PW3 that the accused committed mischief by fire with intent to destroy the hut of PW1. The hut of PW1 was destroyed. The hut was ordinarily used as a place of human dwelling and as a place for the custody of property.
12) PW4 wrote complaint (Ext. Ka-1) on the dictation of PW1, who only append her signatures on such document.
13) PW5 was posted as Sub Inspector in police station, Banbasa on 15.03.2001. On 15.03.2001, at 08:30 A.M., a case was registered (under Section 436 of IPC), chik FIR of which was written by Constable Clerk Atish Kumar. An entry of the same was made in the G.D. PW5 proved chik FIR (Ext. Ka-2) and copy of G.D. (Ext. Ka-3). The investigation of the case was handed over to PW5. He recorded the statements of PW1 and PW4. PW5 took PW1 alongwith him at the place of incident, inspected the same and prepared site plan (Ext. Ka-4). PW5 also proved memo (Ext. Ka-5) of collecting ash and sample of ash (Mat. Ext. 1). Thereafter, he recorded the statements of Nain Singh and other witnesses, affected the arrest of the accused, recorded his statements and after being satisfied that the accused had committed the offence, submitted charge-sheet (Ext. Ka-6) against him.
14) PW5 too was subjected to brief cross-examination, in which he stated, that he prepared site plan at the instance of PW1. He also stated that there was no house in the vicinity of the place of incident. Some other insignificant questions were also asked in the cross-examination of PW5, the replies to which questions did not, at all, benefit the accused-appellant. Defence could not make inroads into the prosecution story, which was proved against the accused-appellant beyond a shadow of reasonable doubt.
15) DW1 was the father of accused-appellant. DW1 pleaded ignorance regarding cause of incident, which took place on 14.03.2001. In other words, DW1 stated that he did not know as to how the hut was set ablaze. DW1 lived with his son, i.e., accused Rajendra Bhatt. His second son, i.e., Heera Vallabh lived with his wife (PW1) in a different hut, which was situated at a distance of 10 paces from DW1s hut. When the hut was set ablaze, DW1 was present in his hut. DW1 further stated that accused Rajendra was with him. Rajendra and others reached at the place of incident when PW1 raised alarm. Since Rajendra stopped PW1 from going to Nain Singhs house, therefore, she falsely implicated him in the crime.
16) In his cross-examination, DW1 stated that PW1s hut caught fire when she was cooking food. He admitted in the cross-examination that Rajendra Bhatt was a widower. DW1 denied suggestion that since Rajendra Bhatt wanted to keep Parwati as his wife, therefore, Rajendra set her house on fire. PW1 Parwati Devi was not in good relations with her husband and, therefore, her husband did not come to her. DW1 further admitted that he and PW1 were living in separate huts for the last ten years. He denied the suggestion that he gave such statement in order to save his son, i.e., appellant. DW1 also admitted that PW1 screamed when her hut was set ablaze. It is surprising that DW1 went to PW1s hut after about an hour of the incident, which conduct was unbecoming of a father-in-law. If DW1 saw that PW1s hut was set ablaze by someone, it would have been his natural conduct to rush immediately towards the hut and made an attempt to rescue PW1 and her children, but, as per his own admission, DW1 did not do so. It appears that DW1 was not in healthy relations with his daughter-in-law and, therefore, he entered into the witness box in order to save his own son, i.e., the appellant. DW1s testimony did not cast suspicion into the prosecution story.
17) Trial court has discussed the prosecution evidence correctly to come to a conclusion that the prosecution was able to prove the offence punishable under Section 436 of IPC against the accused-appellant to the hilt. There appears to be no reason to disagree with the findings recorded by the learned Sessions Judge, Champawat, in as much as the prosecution evidence brought on record was appropriately discussed by him. The trial court also rightly came to the conclusion that the evidence tendered by DW1 was not acceptable, in as much as he was interested in saving his own son.
18) This Court has also independently assessed the prosecution evidence to reach to the same conclusion as was arrived at by the trial court. The judgment and order passed by learned trial court on 27.07.2002 requires no interference so far as the conviction recorded by it against the accused-appellant is concerned.
19) The conviction of the accused-appellant in respect of offence punishable under Section 436 of IPC is, therefore, affirmed. Learned Amicus Curiae made a prayer that the sentence awarded to the appellant is too harsh and the same should be reduced by taking a lenient view taking into consideration the above facts and circumstances of the case.
20) Keeping in view the facts and circumstances of the case, as also the submission advanced by learned Amicus Curaie, this Court is of the view that the sentence awarded to the accused-appellant should be reduced from what was awarded by the court below.
21) Criminal appeal filed on behalf of accused-appellant Rajendra Bhatt is partly allowed to the extent of reduction in the quantum of sentence, which was awarded to him by the Court below. Whereas the conviction awarded to accused-appellant under Section 436 of IPC is affirmed, the sentence awarded to him (i.e. rigorous imprisonment for a period of ten years) is modified to the extent that the convict shall now undergo rigorous imprisonment for a period of five years alongwith a fine of Rs. 15,000/- in respect of offence punishable under Section 436 of IPC. In case of default of payment of fine, the convict shall further undergo rigorous imprisonment for one year. It is reiterated that if an amount of Rs. 10,000/- (out of the total fine of Rs. 15,000/- imposed by the court below) is realized from the accused-appellant, the same be paid to victim Smt. Parwati Devi as compensation.
22) Accused-appellant is on bail. His bail is cancelled. He shall surrender before the court below forthwith to serve out the sentence as modified by this Court.
23) Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.