# Rakesh & Ors. Revisionists v. State of U.P

- **Citation:** (2023) 7 ILRA 503
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-05
- **Case number:** Criminal Revision No. 423 of 1993
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-ors-revisionists-v-state-of-u-p-50365
- **Pages:** 7

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 149, 436, 427 & 452 -The
Code of criminal procedure, 1973 - Section
397/401 - Revision , Section 435, 436 - if
any damage is caused to any property to
the amount of Rs.100/- or upwards the
accused shall be punished under Section
435 IPC - if the destruction by fire or any
explosive substance has been caused to
any building which is ordinarily used as a
place of worship or as a human dwelling
or as a place for the custody of property,
the accused shall be punished under
Section 436 IPC - chance witness - nonexamination of IO is relevant when the
place of occurrence, site plan or other
materials and other objective findings are
concerned
-
On
account
of
nonexamination of the IO if prejudice is
caused to the accused in some matters,
then the Court will give benefit of doubt to
the accused.(Para - 22,27,28)

Informant present in her hut - accused persons
alleged to set hut on fire - no prejudice - FIR
lodged - Trial court found all accused persons
guilty and convicted and sentenced - order
challenged in criminal appeal - partially allowed
- convicts prefer revision - alleged hut belongs
to nazul land - cannot provide evidence of
504 INDIAN LAW REPORTS ALLAHABAD SERIES
ownership - accused did not remove hut after
complaints - Palika removed it on the spot - no
question of setting it on fire - No fire injury on
the person of the witnesses - creates doubt in
mind of Court - about commission of alleged
occurrence by revisionists - IO not examined -
no evidence of samples or ashes sent to FSL -
Trial
judge
records
PW-4's
evidence
-
recognizing SI's writing and signature, despite
not
knowing
the
case
-
completing
formalities.(Para -5,6,15,19,21)

HELD:- Prosecution cannot prove case beyond
reasonable doubt; revisionists have the benefit
of doubt, making trial and appellate court
convictions quashed.(Para - 31,32)

Revision allowed. (E-7)

List of Cases cited:

## Text

7 All. Rakesh & Ors. Vs. State of U.P.
503
in the matter for almost past two and half
decades and there is no other pre or post
criminal
antecedent
of
the
accused
revisionist. Therefore, it would not be
appropriate to send the revisionist in jail.

28. As far as the conviction part is
concerned, this Court does not find any
illegality, perversity or infirmity in the
order passed by the courts below but
keeping in view the discussion made above,
the sentence inflicted on the accusedrevisionist requires modification.

29. The revision is partly allowed
with following modifications:-

29.1. The conviction of the accusedrevisionist by courts below is upheld. The
sentence of revisionist-accused is modified
to the tune that he is provided benefit of
Section 4 of the UP Probation of Offenders
Act and is released on probation on the
condition that he will keep peace and good
conduct for one year from today and shall
file two sureties to the tune of Rs.10,000/-
each along with his personal bond before
the court below and also an undertaking to
the effect that he shall maintain peace and
good behaviour during the period of one
year from today. In case of breach of any of
the conditions mentioned above, the
revisionist will be subjected to undergo the
sentence as directed by the courts below.
The bonds aforesaid will be filed by the
revisionist-accused within one month from
today, before the District Probation Officer,
Ayodhya, UP under the intimation to the
concerned court.

30. A certified copy of the order be
also sent to the court concerned and District
Probation
Officer,
Ayodhya, UP
for
compliance.
----------
(2023) 7 ILRA 503
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 423 of 1993

Rakesh & Ors. ...Revisionists
Versus
State of U.P. ...Respondent

Counsel for the Revisionists:
Sri V.K. Sharma, Sri Surendra Kumar Tripathi, Sri
Sushil Kumar Chaturvedi

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 149, 436, 427 & 452 -The
Code of criminal procedure, 1973 - Section
397/401 - Revision , Section 435, 436 - if
any damage is caused to any property to
the amount of Rs.100/- or upwards the
accused shall be punished under Section
435 IPC - if the destruction by fire or any
explosive substance has been caused to
any building which is ordinarily used as a
place of worship or as a human dwelling
or as a place for the custody of property,
the accused shall be punished under
Section 436 IPC - chance witness - nonexamination of IO is relevant when the
place of occurrence, site plan or other
materials and other objective findings are
concerned
-
On
account
of
nonexamination of the IO if prejudice is
caused to the accused in some matters,
then the Court will give benefit of doubt to
the accused.(Para - 22,27,28)

Informant present in her hut - accused persons
alleged to set hut on fire - no prejudice - FIR
lodged - Trial court found all accused persons
guilty and convicted and sentenced - order
challenged in criminal appeal - partially allowed
- convicts prefer revision - alleged hut belongs
to nazul land - cannot provide evidence of
504 INDIAN LAW REPORTS ALLAHABAD SERIES
ownership - accused did not remove hut after
complaints - Palika removed it on the spot - no
question of setting it on fire - No fire injury on
the person of the witnesses - creates doubt in
mind of Court - about commission of alleged
occurrence by revisionists - IO not examined -
no evidence of samples or ashes sent to FSL -
Trial
judge
records
PW-4's
evidence
-
recognizing SI's writing and signature, despite
not
knowing
the
case
-
completing
formalities.(Para -5,6,15,19,21)

HELD:- Prosecution cannot prove case beyond
reasonable doubt; revisionists have the benefit
of doubt, making trial and appellate court
convictions quashed.(Para - 31,32)

Revision allowed. (E-7)

List of Cases cited:

1. Bhagwan Jagannath Markad Vs St. of Maha.,
(2016) 10 SCC 537

2. Dahari & ors. Vs St. of U.P., AIR 2013 SC 308

3. Shyamal Ghosh Vs St. Of W.B., AIR 2012 SC
3539

4. Ratha Jena Vs St. of Orissa, (1986) 1 Crimes
299

5. Rajwa Kebat Vs St. of Bihar, 1988 CrLJ 1288

6. Nagina Sharma Vs St. of Bihar, 1991 CrLJ
1195 (Patna)

7. Jashmero Vs St. of Punj., 1980 CrLJ (NOC) 46
(P&H)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This criminal revision has been
preferred against the judgment and order of
conviction
and
sentencing
dated
29.10.1992
passed
by
the
Assistant
Sessions Judge-IV, Agra in Sessions Trial
No.166 of 1992 (State Vs. Rakesh and
others), under Sections 149, 436, 427, 452
IPC as well as the judgment and order
dated 27.03.1993 passed by Additional
Sessions Judge-IV, Agra in Criminal
Appeal No.61 of 1992 (Rakesh and others
Vs. State of UP). The trial Judge convicted
and sentenced all the the accused persons
under Section 436 read with Section 149
IPC and sentenced to undergo three and
half years rigorous imprisonment each,
under Section 452 read with Section 149
IPC for six months rigorous imprisonment
each, under Section 427 read with Section
149 IPC they were directed to undergo
three months rigorous imprisonment each.
It was also directed that all the sentences
shall run concurrently.

2. The appeal was partly allowed with
regard to accused Veeru and the conviction
and sentencing under Section 452 read with
Section 149 IPC was also quashed.

3. Being aggrieved by both the order
the
convicted
accused
persons
have
preferred
this
revision.
During
the
pendency
of
this
revision,
accusedrevisionist no.6, Kalua had died and this
revision in respect of revisionist no.6 has
been abated and the same survives in
respect of revisionist nos.1 to 5.

4. The revisionists have taken ground
that in this case investigating officer (IO)
has not been examined, recovery memo is
not proved, no independent witness has
been examined, the disputed land was a
nazul land and the temporary hut installed
by the informant was already removed by
the Nazul Department/Nagar Maha Palika,
site plan has not been proved. Section 436
IPC is not made out as the alleged
occurrence is said to have been committed
in a hut. Witnesses are highly partitioned
witnesses and their statement cannot be
relied on and more so their statements are
7 All. Rakesh & Ors. Vs. State of U.P.
505
also
self-contradictory.
PW-2,
Banshi
husband of the informant is said to have
reached on the spot just after the incident.
He was a chance witness. Presence of the
alleged witnesses is not established. One of
the accused Veeru has been exonerated.
Hence, the revision be allowed and the
impugned
judgments
and
orders
of
conviction and sentencing passed by the
trial court and the appellate court as well be
set aside.

5. In brief, facts of the case are that when
the informant Smt. Vidyawati was present
in her hut situated in Village Jaganpur on
17.04.1988 at about 08:30 a.m. and her
husband had gone out of the house, accused
Rakesh, Ravi, Veeru, Naubat, Harvir,
Kalloo and Kalua alongwith 10-12 persons
came at her jhopadi (hut) and directed to
vacate the same. She was tying cattle
therein. The accused intended to pass
through the land of the hut. All the accused
persons set the hut on fire which reduced to
ashes and her utensils and cash etc. were
burnt. Her cattle were united and led to run.
The occurrence was witnessed by Natthi,
Rajni and some others. There was a loss of
Rs.4,000/-. Present FIR was lodged at
Police Station New Agra on 17.04.1988 at
10:30 a.m. The Assistant Sessions Judge
after
recording
and
appreciating
the
evidence found all the accused persons
guilty and convicted and sentenced them
accordingly.

6. The order of the trial court was
challenged in the aforementioned criminal
appeal which was partly allowed as
mentioned above. Being aggrieved this
revision has been preferred by the convicts.

7. In this case some witnesses i.e.
PW-1, Vidyawati, informant; PW-2, Banshi
- husband of the informant; PW-3, Rajni -
daughter of the informant; PW-4, Head
Constable, Desh Raj Khanna - secondary
evidence have been examined.

8. PW-1, Smt. Vidyawati - informant
has deposed that on the date and time of
occurrence accused persons wanted to
vacate the hut when she did not vacate,
they set the hut on fire due to which
Rs.2,000/-, 17 k.g. grains, 30 k.g. bran
(chuni) were burnt. She had lodged FIR.
She recognized her thumb impression on
the written complaint Ex.Ka-1.

9. PW-2, Banshi has deposed that at
the time of occurrence he had gone to
distribute milk. As soon as he returned, he
saw that his hut was burning and people
were running therefrom. According to him,
accused persons were recognized when
they were running away.

10. PW-3, Rajni has deposed that at
the time of incident she was making tea
when accused persons came and directed to
come out and threatened to put the hut into
fire. When she refused, the accused persons
set the hut on fire. She and her mother
came out due to fire due to which about 70
k.g. grain, 40 k.g. bran and Rs.2,000/- cash,
books and two bhagona had been burnt.

11. PW-4, HC, Desh Raj Khanna has
proved chik FIR, GD map and charge sheet
as secondary evidence. He has proved
secondary evidence on the ground that he
had worked with SI Rajaram and Jagdish
Narayan Sharma and recognizes their
writing and signature.

12. The prosecution did not try to
summon the formal witnesses and closed
the evidence thereafter statement of the
accused persons were recorded under
Section 313 CrPC in which accused
506 INDIAN LAW REPORTS ALLAHABAD SERIES
persons averred that the land of the hut
belonged to the nazul land. Accused
persons had made complaint to the Nagar
Maha Palika upon which the hut had
already been removed. According to the
accused persons at the time of the alleged
occurrence there was no hut on the alleged
place of occurrence.

13. After hearing the arguments, the
accused persons were convicted and
sentenced accordingly and the appeal was
partly allowed and partly rejected. Hence,
this revision has been preferred.

14. Heard learned counsel for the
parties and perused the records.

15. This case is decided as under:-

15.1.(i)
It
is
admitted
to
the
prosecution that the land of the alleged hut
belonged to nazul land. The prosecution
could not produce any evidence of
ownership in favour of the informant.
There is no denial that after complaint
being made by the accused persons the
alleged hut was not removed by the Nagar
Maha Palika. It is a clear case of the
defence that on the complaint of the
accused persons Nagar Maha Palika had
taken action and had removed the hut and it
was not on the spot, therefore, no question
arises to set the alleged hut on fire.

15.2.
Learned
counsel
for
the
revisionists argued that if the alleged hut
was there and was set on fire, some
photographs or FSL report would have
been obtained and burnt articles would
have been produced as material exhibits
and would have been proved in the Court
during the course of trial.

15.3.(ii) PW-2, Banshi was the chance
witness. It is not averred as to when he left
the house and went for distribution of milk
and when he returned.

15.4. Considering
the
facts
and
circumstances of the case, it appears that
PW-2 was a chance witness and he had not
seen the occurrence. He has just repeated
the version of his wife and daughter. This
conclusion finds support from the fact that
he did not make any effort to stop the
accused persons and extinguish the fire.

15.5.(iii) According to the prosecution,
all the accused persons set the hut on fire
but PW-3 Rajni has deposed that only
Rakesh had set the hut on fire. Thus there is
vast difference between the averments of
the complaint, evidence of rest of the
witnesses and the evidence of PW-3, Rajni
and thus the statement of PW-3 is also selfcontradictory. It is not established that
accused persons had made up the mind to
commit an offence under Section 436 IPC
on the place of occurrence. If for the sake
of argument the prosecution story is
accepted in toto, there is no evidence that
rest of the accused persons were knowing
that accused Rakesh had any matchstick to
lit the fire. According to PW-1 and PW-3
the hut was set on fire before them. In that
case they would be knowing as to how and
on which method their hut was burnt.
Whether any explosive substance was
thrown on the hut or only fire was lit by
matchstick. It is also nowhere mentioned
and there is no evidence that when accused
persons set the hut on fire, why they were
not prevented by the informant and her
daughter. Why no attempt to put off the fire
was made and more so when just after the
incident husband of the informant had
reached on the spot why he had not
attempted to extinguish the fire. It has not
come into evidence that the informant, her
daughter or her husband tried to extinguish
the fire and save the hut while they were
7 All. Rakesh & Ors. Vs. State of U.P.
507
not forcibly prevented by the accused
persons.

15.6.(iv) The trial court and the
appellate court has accepted the evidence
of the witnesses as gospel truth while they
are the family members of the informant.
They all were inimical to the accused
persons,
therefore,
the
statement
of
witnesses of fact would not be accepted
without careful and cautious scrutiny. In
that case their corroboration from other
independent evidence was necessary before
recording the conviction and sentencing of
the revisionists.

16. In Bhagwan Jagannath Markad Vs.
State of Maharashtra, (2016) 10 SCC 537;
Dahari and others Vs. State of UP, AIR 2013
SC 308; and Shyamal Ghosh Vs. State Of
West Bengal, AIR 2012 SC 3539 the Apex
Court has held that in such case, Court has to
adopt careful approach in analysing and
accepting the evidence of such interested
witnesses and if the testimony of the related
witnesses is otherwise found credible, only then
the accused can be convicted on the basis of
testimony of such related witness.

17. In this case neither any
documentary or material evidence nor
evidence of independent witnesses such as
Natthi and other persons present on the spot
is available on record. The prosecution did
not try to examine witnesses Natthi and
other persons present on the spot. In such
circumstance presumption under Section
114(g) of The Indian Evidence Act, 1872
arises against the prosecution and it would
be presumed that the independent witnesses
were not ready to tell a lie in favour of the
prosecution and the informant. Hence, they
were not examined.

18. It is not a case that independent
witness were won over by the accused
persons, therefore they were not ready to
depose against them.

19. It is established from the above
discussion that PW-1 to 3 were inimical to
the accused persons though enmity of the
witnesses with the accused is not a ground
to reject their testimony, if on proper
scrutiny the testimony of such witnesses is
found reliable. However, the possibility of
falsely involving some persons in the crime
or exaggerating role of some of the accused
by such witnesses should be kept in mind.
It is not a case that witnesses PW-1 to 3
tried to extinguish the fire. If a house of
any person is set on fire he would try his
best to save the house. Such hostile act of
the informant and the witnesses creates
doubt in the mind of the Court that at the
time of occurrence there was no such hut,
therefore, witnesses did not try to save the
same otherwise they would have tried their
best to save the hut and they would also
have received fire injuries. No fire injury
on the person of the witnesses also creates
doubt in the mind of the Court about the
commission of alleged occurrence by the
revisionists.

20. It is also material that if the
accused persons had adopted legal recourse
regarding removal of the hut and according
to them the same was removed by the
officials of Nagar Maha Palika why they
would try to take law in their hands.
Generally it is seen that such arsoning act
are done in the night when no one is
present in the house but here according to
the prosecution accused persons had set the
hut on fire in day-light and had also not put
masks on their faces to hide their identity.
Generally it is seen and it is a human
conduct and behaviour that the persons do
not commit offence of robbery and
arsoning in day-light and if they do so with
508 INDIAN LAW REPORTS ALLAHABAD SERIES
any familiar person, they hide their faces
and try their best to hide their identity. It is
noteworthy that PW-1, informant has
accepted that she used to tie cattle in the
alleged hut.

21. In this case the IO has not been
examined. There is no evidence that
samples from the place of occurrence or
ashes and burnt articles were taken and
were sent to FSL. The trial judge has
completed mere formalities by recording
the evidence of PW-4 who knows nothing
about the case, he only recognizes the
 writing and signature of the concerned SI.

22. In Ratha Jena Vs. State of
Orissa, (1986) 1 Crimes 299; Rajwa
Kebat Vs. State of Bihar, 1988 CrLJ
1288 it has been held that non-examination
of the IO when entail deprivation of an
opportunity to show contradiction between
a court evidence and his statement recorded
under Section 161 CrPC, non-examination
of IO is fatal to the prosecution. In Nagina
Sharma Vs. State of Bihar, 1991 CrLJ
1195 (Patna) it has been held that nonexamination of IO is relevant when the
place of occurrence, site plan or other
materials and other objective findings are
concerned. On account of non-examination
of the IO if prejudice is caused to the
accused in some matters, then the Court
will give benefit of doubt to the accused.

23. In Nagina Sharma (supra) it has
also been held that if examination of the IO
is very essential and if he is not appearing,
the court has power to adopt coercive
measures for his appearance as and when it
is required.

24. In this case the trial judge has
lamented a lot that the IO, SI Rajaram and JN
Sharma have not been examined by ADGC
and he had not written any application to SSP
for their appearance as witness and also did
not try to send message for their appearance.

25. According to this Court the trial
court has faulted in extending liability upon
ADGC for not summoning the IO for their
examination. It is duty of the court and power
rests in the court to summon the witnesses by
adopting proper and coercive method as
already narrated by the High Court of
Judicature at Patna.

26. The trial Judge neither issued
summons or warrants to the IOs nor wrote a
letter to the SSP, DGP or DG prosecution. He
did not care that material exhibits are not
produced in the court and have not been
proved, therefore, due to non-examination of
the IO and non-production of the independent
witnesses and material exhibits the accused
revisionists have been prejudiced and it can
be very well concluded that no fair trial has
been done by the trial court.

27. Sections 435 and 436 IPC are read
as under:-

"435. Mischief by fire or explosive
substance with intent to cause damage to
amount of one hundred or (in case of
agricultural
produce)
ten
rupees.-
Whoever commits mischief by fire or any
explosive substance intending to cause, or
knowing it to be likely that he will thereby
cause, damage to any property to the
amount of one hundred rupees or upwards
or (where the property is agricultural
produce) ten rupees or upwards, shall be
punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to fine.

436. Mischief by fire or explosive
substance with intent to destroy house,
etc.-Whoever commits mischief by fire or
7 All. Kapil Dev Pandey Vs. State of U.P.
509
any explosive substance, intending to
cause, or knowing it to be likely that he will
thereby cause, the destruction of any
building which is ordinarily used as a place
of worship or as a human dwelling or as a
place for the custody of property, shall be
punished with imprisonment for life, or
with imprisonment of either description for
a term which may extend to ten years, and
shall also be liable to fine."

28. From perusal of both the sections
it is quite clear that if any damage is caused
to any property to the amount of Rs.100/-
or upwards the accused shall be punished
under Section 435 IPC and if the
destruction by fire or any explosive
substance has been caused to any building
which is ordinarily used as a place of
worship or as a human dwelling or as a
place for the custody of property, the
accused shall be punished under Section
436 IPC.

29. In this case the informant PW-1
has accepted that she used to tie cattle in
the alleged hut, hence according to this
Court even if for the sake of argument it is
accepted that the offence had been caused
by the accused persons, it would not be an
offence punishable under Section 436 IPC.
More so, if accused persons had permitted
to save the cattle and if some materials
would also have been kept there, the same
would also have been taken out by the
informant. It has already been said that no
material had been produced during the trial
to prove that some grains, bran and money
etc. were there.

30. In Jashmero Vs. State of Punjab,
1980 CrLJ (NOC) 46 (P&H) it has been
held that a structure made straw and not of
bricks and mortar may be considered a
building if it has got the necessary furnishings
needed for a building such as door bars etc.
An ordinary thatched shed resting on
bamboos or wooden or brick pillars having
no doors etc. cannot be treated as a building
within the meaning of the terms used in
Section 436 IPC but as the bullocks therein
died in consequence of the fire, the accused
could be convicted under Section 435 IPC.
Here no harm was being caused to any of the
cattle to the informant and it has not been
proved that any material of the informant had
been burnt in the alleged arsoning.

31. On the basis of above discussion,
this Court is of the view that the prosecution
has not able to prove the case and charge
against the accused persons beyond the
reasonable doubt. The revisionists are entitled
to benefit of doubt and the order of
conviction and sentencing passed by the trial
court and the appellate court as well are liable
to be quashed.

32. Accordingly, this revision succeeds
and is allowed. The impugned judgments and
orders of conviction and sentencing dated
29.10.1992 and 27.03.1993 passed by the
trial court as well as by the appellate court,
respectively are quashed.

33. A copy of this order be sent to the
court below for necessary compliance, if any.
----------
(2023) 7 ILRA 509
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 10.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 432 of 2009

Kapil Dev Pandey ...Revisionist
Versus
State of U.P. ...Respondent