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State of Himachal Pradesh Vs. Smt. Sheelan Devi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1986CriLJ245
AppellantState of Himachal Pradesh
RespondentSmt. Sheelan Devi
Excerpt:
- .....the accused had run away and that she was the only miscreant. meanwhile, the owner of the cattle-shed sarwan kumar accompanied by hoshnaki ram and ishwar dass also came over there and they untied the cattle of sarwan kumar to save them from fire. in cross-examination he admitted that neither he nor sarwan kumar were on visiting terms with the accused. according to him it was a dark night and he did not see the accused setting fire to the cattle-shed of sarwan kumar.13. hoshnaki ram (p.w, 3) has also supported sarwan kumar on the point that he had accompanied him to the house of the member of panchayat and also when the cattle-shed of sarwan kumar was seen on fire. thunia ram (p.w. 5) has supported the prosecution on the point that sarwan kumar accompanied by hoshnaki ram had come to.....
Judgment:

R.S. Thakur, J.

1. This appeal under Section 377 of the Criminal P.C. has been directed against the order of conviction passed by the learned Sessions Judge, Hamirpur, dated January 8, 1981, in a case under S, 436 of the Penal Code whereby he held the respondent-accused Sheelan Devi (hereinafter referred to as the accused) guilty for the said offence but instead of sentencing her he extended the benefit of the provisions of Section 360 read with Section 361 of the Cr. P.C. and ordered her release subject to her furnishing personal bond with one surety in the sum of rupees 5,000/- each for a period of three years and to come and receive sentence within the said period as and when called upon to do so and in the meantime to keep peace and be of good behaviour. Besides this, he also made her release subject to payment of Rs. 1500/- as compensation to the complainant Sarwan Kumar.

2. The prosecution case against the accused before the trial Court was that the accused and the complainant Sarwan Kumar belong to the same village Gujoh in district Hamirpur. On April 29, 1980, the goats of the accused damaged the wheat crop of the said Sarwan Kumar and when the latter remonstrated in this behalf, the accused started hurling abuses at him and continued doing so for the successive two or three days. Again on May 2, 1980, when one Kanshi Ram of the same village was protesting with the accused that his sugarcane crop was damaged by the goats of the accused the complainant Sarwan Kumar again broached up the topic with the said Kanshi Ram that the goats of the accused had on April 29,1980, also damaged his wheat crop. On this the accused again stated abusing said Sarwan Kumar and during that verbal altercation between the accused and Sarwan Kumar on May 2,1980, the accused threatened that she would burn his house.

3. According to the prosecution the same evening at about 9 P.M. said Sarwan Kumar accompanied by one Hushnaki Ram of his village then went to the house of the member of the gram panchayat of the village, Thunia Ram, in the same village to lodge a report with him that the accused had not only abused him but also threatened that she would burn his house.

4. Just as the said Sarwan Kumar was making this complaint orally to the member, gram panchayat, Thunia Ram, by sitting in the courtyard of his house they saw that the cow-shed of Sarwan Kumar was on fire. The said Swaran Kumar, Hushnaki Ram and one Ishwar Dass sou of the said Thunia Ram then rushed towards the place of this incident. Meanwhile, they saw that one Raghunath of the same village was at his cattle-shed near the cattle-shed of Sarwan Kumar and they all then rescued the cattle of Sarwan Kumar from the fire who were tied in the courtyard of the cattle-shed by setting them free. The entire cattle-shed of Sarwan Kumar which was a thatched one and which also served as store for cattle fodder and fuel wood was completely destroyed by fire including the fodder and the fuel wood stored in it which resulted in loss to the said Sarwan Kumar to the tune of Rs. 5,000/-.

5. According to the prosecution the said Sarwan Kumar and his companion while running towards the cattle-shed, as; also Raghunath who was at his cattle-shed, had seen the accused running away from the scene of fire at the time when it was detected that the cow-shed of Sarwan Kumar was on fire. At about 11 P.M. on the same day; that is, May 2, 1980, Sh. Munshi Ram the Pardhan of Gram Panchayat, Sohal which comprised of village Kujoh also came on the scene of occurrence and after making enquiries as to how the cattle-shed of Sarwan Kumar caught fire, he lodged a report in the police station, Hamirpur on the phone from the Polytechnic Institute near there. The Police immediately thereafter arrived on the spot for investigation and arrested the accused on May 3, 1980, and subsequently sent her up to stand her trial under Section 436 of the Penal Code,

6. The accused was tried by the learned Sessions Judge, Hamirpur, for the offence under Section 436, I.P.C. and on the conclusion of the trial, held her guilty of the said offence and released her on probation of good conduct as stated earlier.

7. This order has been impugned in this appeal in this Court by the State, mainly on the ground that the lower Court was not. justified in releasing the accused under the provisions of Sections 360 and 361 of the Cr. P.C. as the offence under Section 436, l.P.C. was of a serious nature and she ought to have been suitably and adequately punished under the provisions of the said section.

8. I have heard the learned Counsel for the parties. The learned Assistant Advocate General has contended that since the maximum punishment prescribed for the offence under Section 436, IPC under which the accused has been convicted, does not fall within the provisions of Section 360 of the Cr P.C., therefore, the learned Sessions Judge had no power to release the accused on probation as he has done and order to that extent is liable to be set aside. This contention of the learned Counsel, in my opinion, is unassailable. Subsection (1) of Section 360 of the Cr. P.C. in terms inter alia, lays down that even in the cast of any person under twentyone years of age or any woman, as in the instant case, the conviction should be of an offence not punishable with death or imprisonment for life, meaning thereby that in case they are convicted of the offences which are punishable with death or imprisonment for life the provisions of Section 360, Cr. P.C. would not come into operation and as such the Court has no power whatsoever to release such a person on probation. The learned Counsel for the accused has also conceded to this legal proposition. He has, however, challenged the very basis of conviction of the accused and has stoutly contended that the evidence on record does not bring home the offence to the accused beyond all reasonable doubt and that in these circumstances the conviction of the accused under Section 436 of the Penal Code was not sustainable.

9. Though the accused has not challenged her conviction in appeal before this Court, however, the provisions of Sub-section (3) of Section 377 of the Cr. P.C. in terms entitle her to plead for her acquittal as is being done in the instant case.

10. Now in view of this, it would be but proper for this Court to take reappraisal of the evidence on record. It appears that the prosecution case entirely rests upon the oral testimony of several witnesses.

11. Shri Sarwan Kumar (P.W. 1) is the complainant himself whose cattle-shed was involved in the incident of fire. He has stated that on April 29, 1980, at about 4 P.M. the goats of the accused damaged his wheat crop and when he drove them away the accused started abusing him and continued doing so for three or four days whenever he would meet her. He has further stated that on May 2, 1980, at about 5 P.M. while he was working in his fields, Kanshi Ram (P.W. 7) of his village was also working in his own adjoining fields and at that time the goats of the accused caused damage to the sugarcane of said Kanshi Ram and when said Kanshi Ram remonstrated with the accused, she (the accused) started abusing said Kanshi Ram. This witness then also told said Kanshi Ram that his wheat crop had also been damaged previously by the goats of the accused and on this the accused started abusing him (P.W. 1) also and threatened that she would burn his house. At about 7 P.M. that day, he then went to the house of Hoshnaki Ram (P.W. 3) of that village and asked him to accompany him to the house of the member of Panchayat as he wanted to lodge a report there against the accused. Then they both went to the house of Thunia Ram member of Panchayat and complained to him against the accused at about 9 P.M. Meanwhile, they noticed flames rising from his cattle-shed and on this he, Hoshnaki Ram and Ishwar Dass son of the Panch Thunia Ram rushed to the place of occurrence. They also at that time heard an alarm being raised to the effect that Sheelan Devi accused had set the cattle-shed on fire and was running away. They also then saw the accused running away from the cattle-shed on fire towards the north from a distance of about 200 yards in the light of the flames. Meanwhile the residents of the village also collected there and extinguished the fire. After a couple of hours, Pardhan Munshi Ram (P.W. 6} also came over there and he (P.W. 1) narrated the entire incident to him.

12. Raghunath (P.W. 2) has stated that his cattle-shed was at a distance of about sixty feet from the cattle-shed of Sarwan Kumar in village Gajoh and that he had gone to his cattle-shed on the night of the incident at about 9 P.M. to give fodder to the cattle and while doing so he saw the cattle-shed of Sarwan Kumar on fire and he then saw the accused running towards the opposite side of his cattle-shed and he then raised an alarm while saying that the accused had run away and that she was the only miscreant. Meanwhile, the owner of the cattle-shed Sarwan Kumar accompanied by Hoshnaki Ram and Ishwar Dass also came over there and they untied the cattle of Sarwan Kumar to save them from fire. In cross-examination he admitted that neither he nor Sarwan Kumar were on visiting terms with the accused. According to him it was a dark night and he did not see the accused setting fire to the cattle-shed of Sarwan Kumar.

13. Hoshnaki Ram (P.W, 3) has also supported Sarwan Kumar on the point that he had accompanied him to the house of the member of Panchayat and also when the cattle-shed of Sarwan Kumar was seen on fire. Thunia Ram (P.W. 5) has supported the prosecution on the point that Sarwan Kumar accompanied by Hoshnaki Ram had come to his house on the day of incident and complained against the accused and they were still at his house when the fire was detected at the cattle-shed of Sarwan Kumar when Sarwan Kumar, Hoshnaki Ram and his son Ishwar Dass rushed towards the cattle-shed while he remained at home as he was an old man. He had also deposed that on the same evening at about 7 P.M. he had heard the accused saying loudly that she would set the house on fire '{Ajliani Kari Deni)'. In cross-examination he stated that he had seen such fire in the village three or four times prior to the incident and in fact the in-laws of the accused had died as a result of such fire in their house some years ago.

14. Munshi Ram (P.W, 6) who is the Pardhan of the Gram Panchayat has stated that on the night of incident he was at his house in village Bhatti which is at a distance of 2 K.M. from the village Gajoh and when he detected fire in the cattle-shed of Sarwan Kumar at about 9 P.M. he rushed to the place of occurrence and arrived there at about 11 P.M. When Sarwan Kumar told him that his cattle-shed had been set on fire by the accused as she was annoyed with him because of previous incident when his wheat crop was damaged by her goats and she was also seen running away from the place of incident. This narration of Sarwan Kumar to this witness was also supported by Hoshnaki Ram and Raghunath etc. According to him. at that time, the residents of the entire village were present and he then went to the house of the accused along with the residents of village who were at the place of incident. He then called for the accused to come out of her house but she did not. Thereafter, he and one Chandu Ram Subedar, went with flash light and found her sitting by the side of a bag in the upper storey of her house in a perplexed manner. He then brought her out of the house to explain her position. The accused then first charged him and others of having trespassed into her house and thereafter she openly declared that next time she would burn the whole village and on this the persons present there asked him to lodge a report against the accused and thereafter he went to the Polytechnic Institute along with a couple of other persons of the village at about 11.30 P.M. and lodged the report with the police on the telephone from the said Institute. The police then arrived on the spot just after an hour and carried investigation.

15. Kanshi Ram (P.W. 7) has stated that on the day of incident at about 8/9 A.M. while he was working in his fields and Sarwan Kumar was in his courtyard the said Sarwan Kumar told him that the goats of the accused had damaged his wheat crop while he also told said Sarwan Kumar that the same goats had damaged his sugarcane crop. On this a verbal altercation ensued between Sarwan Kumar and the accused, the accused then threatened that she would burn his house that day in her own local dialect '(Lyani kar deni aaj') and that very evening the cattle-shed of Sarwan Kumar was gutted by fire.

16. The last witness Balwant Singh Katoch (P.W. 9) has investigated the case.

17. On the foregoing evidence, the learned Sessions Judge has based the conviction of the accused. The factors which appear to have weighed with him while coming to this conclusion are that in the first instance there was a motive for the accused to have committed this offence as a quarrel had taken place between her and Sarwan Kumar when the goats of the accused had damaged the wheat crop of Sarwan Kumar on April 29, 1980. Then the ignition point was reached on the day of incident when during day time again verbal altercation took place between the accused and Sarwan Kumar in the presence of Kanshi Ram when the accused openly threatened that she would burn down the house of Sarwan Kumar on that very day.

18. Then the learned lower Court was swayed by the evidence of the eye-witnesses namely, Sarwan Kumar himself, Hoshnaki Ram (P.W. 3), Raghunath (P.W. 2) etc. who all claimed to have seen the accused running away from the scene of fire immediately after the cattle shed of Sarwan Kumar was on fire.

19. After careful consideration, I have come to the conclusion, however, that this appreciation of evidence by the learned Sessions Judge was just superficial and does not stand the test as to whether this could be the natural or probable in the circumstances of the case and the possibility cannot be ruled out that the accused is a victim of a'frame-up'.

20. In the first place, according to the complainant Sarwan Kumar, he remonstrated with the accused when her goats damaged his wheat crop and on this the accused became so infuriated that she continued abusing him for the next two three days as and when she would come across said Sarwan Kumar. This appears to be highly improbable. It is on record that the accused is a lone-lady in her house who had become widow at the young age of 35 when she is required to bring up a young kid of just nine years. Admittedly her in-laws also died on account of fire which destroyed her house some years ago. In these circumstances, it is improbable that she would behave in that cavalier or arrogant fashion as to browbeat everybody and even to hurl abuses continuously at Sarwan Kumar a young man of 25 years, especially, whan he had done no harm to the accused and on the contrary, as asserted by Sarwan Kumar, the goats of the accused had destroyed the wheat crop of said Sarwan Kumar.

21. Then the witnesses want to have the court believe that on the day of incident, that is. May 2, 1980, the accused openly threatened that she would that very day set the house of Sarwan Kumar afire. According to P.W. Kanshi Ram, She declared this openly in his presence at about 8 or 9 in that morning. Then according to the member of Gram Panchayat Thunia Ram, she again declared this while passing by the house of the said Thunia Ram on the path at about 7 P.M. that she would burn the house on that very day. This again appears to be highly improbable behaviour of a normal man. In the ordinary course no normal man would declare it openly that that very day he would set somebody's house on fire and go on declaring it throughout the day especially within the hearing of the persons who count in the village like member of the Gram Panchayat, even if he has the intent or necessary mens rea to accomplish such an act. Further the evidence of Kanshi Ram (P.W. 7) and Sarwan Kumar (P.W. 1) contradict each other on this material point. For instance according to P.W. Sarwan Kumar at the time when the accused held out this threat to him he was working in his fields while Kanshi Ram was working in the adjoining field. According to Kanshi Ram, however, only he was working in his fields while Sarwan Kumar was working in his courtyard. Then according to Sarwan Kumar, this verbal altercation between the accused and him took place at about 4 or 5 P.M. in the presence of Kanshi Ram on May 2, 1980. while according to Kanshi Ram this happened at about 8 or 9 A.M. 1 also feel that this incident again appears to be highly improbable, since even according to these witnesses the accused did not give any abuses to Kanshi Ram although that day the said Kanshi Ram was remonstrating with the accused that damage had been caused by her goats to his sugarcane crop but she rather again abused Sarwan Kumar when he told Kanshi Ram that the same goats had destroyed his wheat crop also on April 29, 1980. It may also be noted that the behaviour of Sarwan Kumar in the entire episode does not appear to be natural. Admittedly his wheat-crop was destroyed or damaged by the goats of the accused according to him on April 29. 1980 and the accused went on abusing him thereafter. Strangely enough, however, this Sarwan Kumar did not take any steps against the accused. He did not even care to report the matter to the member of the Gram Ranchayat, Thunia Ram, and he chose to do so only on May 2, 1980 and that too at 9 P.M. that is, just at the time when his cattle-shed was seen on fire, although, according to Kanshi Ram, this threat was held out by the accused to burn the house of Sarwan Kumar at 8 or 9 in the morning on that day, but, even if it happened at 4 or 5 P.M. as is claimed by P.W. Sarwan Kumar, the natural behaviour on his part would have been to go and complain against the accused just at that time and the proper man whom he should have taken with him was not Hoshnaki Ram but P.W. Kanshi Ram in whose presence this threat was allegedly held out. I, therefore, feel highly doubtful whether any such thing has happened or Sarwan Kumar ever went to P.W. Thunia Ram to complain against the accused. This appears to be just an afterthought.

22. Now we come to the actual incident of fire. According to the prosecution P.Ws. Sarwan Kumar, Hoshnaki Ram, Thunia Ram and his son Ishwar Dass detected the fire in the cow-shed of Sarwan Kumar when they were sitting in the court-yard of Thunia Ram in Village Kajoh and the said Sarwan Kumar, Hoshnaki Ram and Ishwar Dass then rushed towards the place of incident and while doing so they detected from a distance of about 200 yards from the cow-shed in the light of the flames, although it was a dark night, that the accused was running away from the scene of fire. Then P.W. Raghunath has stated that he had gone to give fodder to his cattle in his cattle-shed which is at a distance of 65 feet from the cattle-shed of Sarwan Kumar and although he did not see the accused setting fire to the cattle-shed of Sarwan Kumar but he saw her standing in the thrashing floor in the compound of the cattle-shed of Sarwan Kumar and also then saw her running away from there, and he then shouted that the accused was running away and it was she who had set the cattle-shed on fire. This entire evidence also appears to be tutored and a result of an afterthought. It is highly improbable that any person who set this cattle-shed on.fire would have stayed there long enough to see it going into full flames so that the people could detect him or her even from a distance of 200 yards while running away from there. The natural behaviour on the part of the culprit would have been to make good his/her escape immediately after the fire was set in order to avoid his or her detection or being caught red handed. Admittedly, immediately after the cattle shed was seen in flames the residents of entire village Kajoh had rushed to the place of incident but none else has come forward to say that the accused was accosted by anyone of them while going towards her house and admittedly her house is in village Kajoh itself and the accused was having a nine year old kid in her house who could not remain alone and unattended at that hour of the night. I, therefore, feel that none of these witnesses saw any culprit or the accused either setting fire to the cattle-shed or running away from the place of incident and the depositions of Sarwan Kumar, Hoshnaki Ram and Raghunath in this behalf are not worth any credence.

23. Now in the post incident era Munshi Ram Pradhan Panchayat (P.W. 6) comes on the scene. The behaviour of this Pardhan, however, amply proves how this accused has been a victim of harassment at the hands of the residents of village Kajoh. According to this witness when P.Ws. Sarwan Kumar, Hoshnaki Ram and Raghunath told him that it was the accused who had set the cattle-shed on fire, he along with other residents of village Kajoh who had gathered at the place of the incident went to the house of the accused round about 11 P.M. and called the accused out of her house, but when she did not do so, he along with Subedar Chandu Ram went inside the house with the flash light and found her sitting by the side of a bag in the upper storey in a perplexed state and when they brought her out, she charged them of having trespassed into her house and threatened that she would burn the entire village next time.

24. The version of the accused on the other hand in her statement under Section 313, Cr. P.C. is that she could not go to extinguish the fire in the cattle-shed of Sarwan Kumar as the other residents of village had done as she had to look after her young son of nine years. According to her she was fast asleep in the upper storey of her house with her child when said Munshi Ram Pardhan and the other person came to her bed at 11 P.M. and took her out of the house into the court-yard and kept her standing there for 11/2 hours. She denied that she had threatened to burn the entile village.

25. I feel that the version of the accused is plausible. The version of Munshi Ram Pradhan in this behalf again does not stand the test of probability. As per his statement; 'the accused was so terrified that she was hiding herself by the side of a bag in the upper storey in a perplexed state of mind'. It is hightly improbable that when she was brought out of the house by him she would have become so bold as to accuse the pardhan of having trespassed into her house and further to state in a sense of bravado in the presence of the residents of entire village that she had only burnt a cattle-shed and that she could burn the entire village. On the other hand 1 have no doubt that at that time she was sleeping with her child and 1 strongly feel that this Pardhan or any other person had no business to enter the house of the accused at that unearthly hour and to drag her out of her house especially when she was a lone-lady in the house with her child. Be it staled that every house of a citizen in a democracy like ours is his own castle and nobody howsoever high and mighty he may be, has any right whatsoever to enter his or her house without his or/her consent except in accordance with due process of law and this act on the part of Pardhan Munshi Ram was highly improper and objectionable and the accused had rightly accused him of trespassing into her. house if she really did so. This, however, brings the fact into bold relief as to how the residents of village Kajoh have been tormenting and harassing this lady in her helplessness and in these circumstances the possibility cannot be ruled out that they have all conspired to inculpate the accused in a false case.

26. In view of the above facts and circumstances, a great doubt arises with regard to the veracity of the statements of the prosecution witnesses and the honesty of the investigating agency and, as the law is, the benefit of this doubt must go to the accused. I, therefore, set aside the order of conviction of the lower court dated January 8, 1981, and acquit the accused of the offence under Section 436 I.P.C. The amount of Rs. 1500/- if paid by the accused to Sarwan Kumar as ordered by the lower court by way of compensation, the same shall be deposited by the complainant Sarwan Kumar in the Court of the Sessions Judge, at Hamirpur within a period of two months and the same shall then be refunded back to the accused forthwith. In case the said Sarwan Kumar fails to deposit this amount within the stipulated period, the learned Sessions Judge will take appropriate steps against him towards its realisation and the repayment thereof back to the accused at his earliest under intimation to this Court.


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