Suspicion cannot replace proof in criminal trials, necessitating clear and cogent evidence for a conviction.

JUDGMENT :

(RAMESH CHAND MALVIYA, J.)

The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the Judgment of conviction dated 06.06.2013 and order of sentence dated 12.06.2013 passed in Sessions Trial No. 149 of 2009 in connection with Itarhi P.S. Case No. 36 of 2007 dated 05.04.2007 passed by learned Additional District and Sessions Judge- IVth, Buxar, whereby and where under the appellants have been convicted for the offence under Sections 436 /34 of INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for ten years and Rs. 5000/- fine has been imposed and on failure of payment of fine, the appellants will further have to undergo simple imprisonment for 1 year with the direction that all sentences shall run concurrently.

2. Heard Mr. Digvijay Kumar Ojha, learned counsel for the appellant assisted by Mr. Kumar Rajiv and Mr. Mukeshwar Dayal, learned APP for the State.

3. The brief fact leading to the filing of the present appeal on the basis of written statement given by Guddu Yadav (informant) on 05.04.07, at about 2 PM in the day, a fire broke out in the house. At that time, he was sleeping, when suddenly he woke up and he saw the fire and shouted. The people of the village gathered and tried to extinguish the fire, but it could not be extinguished and all the household goods were burnt. He further stated that he was fully confident that Musafir Yadav alias Veer Singh and Shivji Yadav have set fire to their house since they had seen him coming and going from that road 3-4 times and they had a quarrel with him from before.

4. Further on the basis of written statement of informant Guddu Gadav, on 05.04.2007 a formal FIR was registered in Hatadi Police Station Case No. 36 of 2007 dated 05.04.2007 against Musafir Yadav @ Veer Singh and Shivji Yadav under Section 436 of INDIAN PENAL CODE which was presented in the court of the Chief Judicial Magistrate, Buxar on 06.04.2007 and after investigation, charge sheet no. 105 of 2007 dated 31.07.2008 was submitted to the court of Chief Judicial Magistrate, Buxar on 18.09.2007. The case was committed to the court of the Districts and Sessions Judge for trial. On 30.06.2009, charges was framed against the appellants Musafir Yadav @ Veer Singh and Shivji Singh under Sections 436 /34 of the INDIAN PENAL CODE .

5. The prosecution examined altogether 10 witnesses to substantiate the charges levelled against the appellants, who are namely, PW-1 Haridwar Singh, PW-2 Surendra Bhar, PW-3 Gorakh Ram, PW-4 Kedar Ram, PW-5 Dinesh Yadav, PW-6 Shashibhushan Mishra, PW-7 Guddu Yadav (informant), PW-8 Seeta Devi (wife of informant), PW-9 Vasukinath Kunwar and PW-10 Mohammed Shamiullah (Investigating Officer). Prosecution has also brought on record documentary evidence, Exhibit-2 is the writing and signature on the charge sheet, Exhibit-3 is the writing and signature of the written application, Exhibit-4 is the endorsement on the written application and Exhibit-5 is the case diary. The defence has neither produced any oral witness in its support nor presented any documentary evidence before the court.

6. PW-2 Surendra Bhar, PW-3 Gorakh Ram, PW- 4 Kedar Ram have been declared hostile by the prosecution and they have stated in their evidence that they do not know anything about the incident.

7. PW-1 Haridwar Singh is a formal witness, he has marked the handwriting and signature of the official applicants as Exhibit I.

8. PW-5 Dinesh Yadav stated in paragraph no. 1 of his examination-in-chief that the incident took place three years ago