- (1.) LEARNED Sessions Judge, Churu, by his judgment dated 28. 2. 79 has found appellant Bhom Singh guilty of an offence u/s 436 I. P. C. and has sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/- and in default to undergo, further, rigorous imprisonment of two months. Aggrieved, Bhom Singh has come in appeal.
(2.) BRIEFLY stated, the prosecution story is that PW 10 Smt. Naurti was the concubine of Thakur Kusalsingh, father of the appellant. Rs. 1400/- had been stolen from the house of Smt. Naurti and she suspected the appellant about this theft. It is alleged that there was some sort of quarrel between Smt. Naurti and Bhomsingh upon which Bhomsingh threatened to burn the 'tapra' of Smt. Naurti. The prosecution story, further, is that on 1. 6. 78 at about 2. 30 or 3 p. m. , the appellant along with his brother Nathu Singh set the 'tapra' of Smt. Naurti on fire. PW 6 Dalu Ram and his nephew PW 7 Ramu Ram happen to pass that way and both of them saw Bhom Singh and Nathu Singh setting the 'bad' of Smt. Naurti on fire. At that time, Bhom Singh was having one 'siniya' in a burning state in his hand. The prosecution story is that Dalu Ram and Ramu Ram raised an alarm with the result that a large number of persons assembled there including PW2 Mota Ram. The prosecution story, further, is that Dalu Ram and Ramu Ram told Mota Ram about this incident but the accused persons had made good their escape in the meanwhile. Since wind was blowing that day, the fire could not be extinguished and spread to entire village with the result that 60-70 houses in the village were burnt. The prosecution case, further, is that a report of the incident Ex. P1 was lodged by a number of persons including Mota Ram with Shri Pritam Singh, S. H. O. , police station, Sandwa on 2. 6. 78 at village Katar. Shri Pritam Singh was proceeding to Badsar, therefore, a case was not immediately registered. He eventually registered a case u/s 436 I. P. C. against the appellant and his brother Nathu Singh on the same night at 11 p. m. after returning from Badsar. Shri Pritam Singh could not prepared a site plan at that very place because he got busy in extinguishing this huge bon fire. He, therefore came back to Badsar on 3. 6. 78 and made a usual site inspection and prepared site plan Ex. P4 and its legend Ex. P4a. Thereafter he recorded statements of various witnesses. A challan was filed against appellant Bhom Singh. Since his brother Nathu Singh was absconding, proceedings were initiated against him u/s 299 Cr. P. C. Learned Sessions Judge framed a charge against the appellant u/s 436 I. P. C. to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW 1 Mota Ram s/o Nattha Ram, PW 2 Mota Ram s/o Ladhu Ram, PW 3 Keshji, PW 4 Rugh Singh, PW 5 Berisal Singh, PW 6 Dalu Ram, PW 7 Ramu Ram, PW 8 Dula Ram, PW 9 Aasu Singh, PW 10smt. Naurti and PW 11 Pritam Singh.
(3.) IN his statement u/s 313 Cr. P. C. the appellant admitted that on the fateful day, 50 to 60 houses in the village had been burnt but he has denied his complicity in the offence. According to him, Nathu Singh was away from Badsar that day. His statement is that he had even joined in extinguishing the fire and the allegation that he had set the 'bada' of Smt. Naurti on fire, is absolutely false. According to him, Ramu Ram was nephew of Dalu Ram. Dalu Ram and one Pema Ram had cultivated his land on crop share basis and a dispute arose between him and Dalu Ram on the question of division of the crop and, therefore, both of them, namely, Dalu Ram and Ramu Ram had a quarrel with him and had falsely implicated him. He did not lead any evidence-in defence. Learned Sessions Judge relied upon the testimony of Dalu Ram and Ramu Ram and held that the accused appellant had set the 'bada' of Smt. Naurti on fire. The incident had been witnessed by Dalu Ram and Ramu Ram both. He has found corroboration of the testimony of these witnesses from the statement of PW 2 Mota Ram, who claims to have seen the appellant and his brother Nathu Singh running away from the spot and had seen their entering their houses. On the basis of this evidence, learned Sessions Judge held the appellant guilty as stated above and sentenced him as aforesaid. Learned counsel for the appellant has submitted that in this case, the F. I. R. Ex. P1 was not lodged on the day of the incident though a large number of villagers were available for being despatched to police station to ledge a report. The F. I. R. was lodged on 2. 6. 78 by PW 1 Mota Ram. A formal F. I. R. was recorded on the basis of this report on 2. 6. 78 at 11 p. m. in the night. The endorsement on the formal F. I. R. Ex. P2 shows that it had been registered by the Magistrate on 17. 6. 78. He submits that the statements of Dalu Ram and Ramu Ram were recorded on 18. 8. 78 and not earlier. Even though the F. I. R. was lodged after good deal of delay, their names were not mentioned in the F. I. R. There was not even the faintest suggestion that the incident had been witnessed by Dalu Ram and Ramu Ram. . He submits that Ramu Ram being nephew of Dalu Ram has supported Dalu Ram's case. Dalu Ram had a quarrel with the appellant regarding the sharing of the crop and hence, a false story has been concocted. After lapse of almost -1/2 months, he submitted that both these witnesses are chance witnesses. He, further, submits that the story that PW 2 Mota Ram had seen the appellant and his brother Nathu Singh running away from the scene of occurrence was not mentioned in the F. I. R. and, therefore, his statement does not deserve to be accepted. ;