Patna High Court
Basudeo YadavversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The conviction under Section 436 IPC is quashed and the appellant is acquitted.
Summary
Basudeo Yadav was convicted by a Sessions Court under Section 436 of the Indian Penal Code for allegedly setting fire to a hut during a violent incident linked to a land dispute. The prosecution's case relied solely on four witnesses, all of whom were close relatives of the informant and thus interested witnesses, with no independent corroboration, no forensic evidence, and the investigating officer was not examined. The appellant argued that the evidence was insufficient, contradictory, and tainted by the underlying civil dispute. The Patna High Court held that the conviction was unsafe as the prosecution failed to establish the essential ingredients of Section 436 beyond reasonable doubt, especially given the unreliable nature of the interested testimonies and the lack of corroborative material. Consequently, the court set aside the conviction, acquitted the appellant, and ordered the refund of any fine paid.
Issues considered
- Whether the prosecution proved the offence under Section 436 IPC beyond reasonable doubt given the reliance on interested witnesses.
- Whether the non‑examination of the investigating officer and lack of independent corroboration vitiates the conviction.
- Whether the land‑dispute motive undermines the credibility of the prosecution's case.
Legislation cited
- Arms Act — s. 27
- Explosive Substances Act — s. 3(4)
- Indian Penal Code — s. 436
Subjects
- arson
- mischief by fire
- Section 436 IPC
- interested witnesses
- evidence reliability
- acquittal
- criminal appeal
- land dispute motive
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.70 of 2013
Arising Out of PS. Case No.-20 Year-1989 Thana- BODHGAYA District- Gaya
======================================================
Basudeo Yadav, S/O Late Jagan Yadav, Resident Of Village Sewabigha, P.S.
Bodhgaya, District Gaya.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sunil Kumar Pathak, Advocate
Mr. Ashok Kumar, Advocate
For the Respondent/s : Mr. S.N. Prasad, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 31-03-2026
Heard Mr. Sunil Kumar Pathak learned counsel for
the appellant and Mr. S.N. Prasad, learned APP for the State.
2. This criminal appeal has been preferred against the
judgment dated 10.01.2013 and order of sentence dated
15.01.2013 passed in Sessions Trial No. 517 of 2009/304/1990
arising out of Bodhgaya P.S. Case No. 20 of 1989 by Adhoc
Addl. District and Sessions Judge III, Gaya whereby the learned
trial court convicted the appellant under Section 436 of the
Indian Penal Code and sentenced him to undergo 10 years of
imprisonment along with a fine of Rs.1000/- and in lieu of
deposit of fine to further undergo imprisonment for six months.
3. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence, the appellant has
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preferred the present appeal before this Court. The appellant has
assailed the impugned judgment primarily on the ground that
the learned trial court failed to appreciate the evidence available
on record in its proper perspective and has wrongly recorded the
conviction of the appellant.
BRIEF FACTS OF THE CASE
4. The case of the prosecution, in brief, is that on the
basis of a written report submitted by the informant, addressed
to the Officer-in-Charge of Digha Police Station, the present
case came to be instituted. It is alleged that on the date and time
of occurrence, all the named accused persons, variously armed
with firearms, cartridges and bombs, arrived near the house of
the informant and started abusing him and his family members
in filthy language. When such conduct was protested, accused
allegedly exhorted his companions to destroy the house of the
informant by hurling bombs. Pursuant thereto, Nuran Yadav is
said to have thrown two bombs one after another, causing
injuries to Bhuneshwar and Ishwar Yadav. It is further alleged
that Ishwar Yadav, armed with a country-made gun, fired at the
informant party, though the shot misfired. The prosecution
further alleges that thereafter Basudeo Yadav set fire to a hut
belonging to Naresh Singh of the same village. On alarm being
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raised and upon arrival of Naresh Singh, the accused persons
fled away towards their respective houses. The occurrence is
stated to have been motivated by prior enmity, and the informant
prayed for appropriate legal action against the accused persons.
5. After institution of the FIR, the police proceeded
with the investigation and after completion of the investigation,
charge-sheet was submitted. Thereafter, the trial court took
cognizance against the appellant and the case was committed to
the Court of Sessions for trial.
ARGUMENT ON BEHALF OF THE APPELLANT
6. Learned counsel appearing on behalf of the sole
appellant submitted that the charges were framed on 28.04.1992
under Sections 147, 436/149, 148, 325 IPC, as well as under
Section 3(4) of the Explosive Substances Act and Section 27 of
the Arms Act. Altogether nine accused persons faced trial, out of
them, eight accused persons were acquitted by the same
judgment and order as the prosecution failed to prove the
charges against them. However, the present appellant alone was
convicted under Section 436 IPC. The prosecution examined
only four witnesses during the trial and all the witnesses are
close relatives of the informant, and no independent witness
from the village/place of occurrence was examined. P.W-1 is
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own brother of the P.W-4(informant), P.W-3 is son of P.W.-1 and
P.W.2 is nephew (Bhgina) of P.W.4. Learned counsel further
submitted that the existence of prior enmity between the parties
is admitted. There were ongoing land disputes and civil
litigation. It has also come in evidence that an earlier case of
theft was instituted by the prosecution side, in which the
accused persons were acquitted. Proceedings under Sections 145
Cr.P.C. and 107 Cr.P.C. were also pending between the parties
concerning the same land dispute, indicating longstanding
hostility. There is no objective or reliable evidence on record to
establish the alleged act of burning. Therefore, the charge under
Section 436 IPC has not been proved beyond reasonable doubt.
The Investigating Officer and the Doctor were not examined.
No injury report has been proved. Further, no sanction relating
to the Explosive Substances Act has been brought on record.
Non-examination of the Investigation Officer has caused serious
prejudice to the defense, as the manner of occurrence has not
been established. The place of occurrence has not been properly
proved. Contradictions in the testimony of prosecution
witnesses could not be duly confronted and proved.
7. Learned counsel further submitted that P.W.-4 has
himself admitted that the sole appellant Basudeo Yadav had set
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the hut on fire by throwing a burning matchstick on the hut.
P.W.-4, in his cross examination, has admitted in paragraph no.
16 that the bomb was thrown by one co-accused Mohan Yadav
and further in paragraph no. 18, he has admitted that the
incidence took place in the month of February and due to dew,
the hut remains moist. P.W.4 (informant) is the eye witness and
he has failed to produce any corroborative evidence on record to
establish that beyond reasonable doubt the hut was sat on fire.
Even the burnt articles were not found on the spot.
8. Learned counsel further submitted that P.W.4
(informant) and other prosecution witnesses have admitted that
nobody was residing in the hut or the said hut is residential
house. The fact that nobody was residing in the hut is also
supported by the evidence that no articles like utensils or other
households articles were recovered from the place of
occurrence. The Investigating Officer had not collected any
incriminating articles from place of occurrence. The
Investigating Officer has not been examined. He further
submitted that in absence of examination of any independent
witness and without any objective finding with regard to the
burning in question, the prosecution has miserably failed to
establish the allegation against the appellant. There was a civil
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dispute regarding a piece of land and P.W-4 (informant) has
admitted that the appellant is his co-villager in which respect,
145 and 107 proceeding has also been contested between the
parties. In view of the dispute already between the parties, there
is every possibility of implicating the appellant by making a
false allegation.
ARGUMENT ON BEHALF OF THE STATE
9. Per Contra, learned APP appearing for the State while
opposing the appeal submitted that the learned District court,
after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellants for said offences.
ANALYSIS AND CONCLUSION
10. Heard the parties.
11. The present appeal has been filed questioning the
conviction recorded and fine imposed under Section 436 of the
I.P.C. against the sole appellant. In the present case I.O. has not
been examined, therefore, there is no question of seizure list
having been prepared on his part. It is the case of the
prosecution that the accused/appellant is the order giver and had
set the hut of the informant on fire along with other accused
persons.
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12. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
13. With reference to the aforesaid rival legal
contention urged on behalf of the parties, I have carefully
examined the case to find out whether the impugned judgment
warrants interference by this Court on the charge levelled
against the accused/appellant under Section 436 of the I.P.C.
14. It would be appropriate to reproduce the provisions
of Section 436 of the IPC for the sake of convenience and better
understanding of the facts, which are as under:-
“436. Mischief by fire or explosive
substance with intent to destroy house, etc.
—
Whoever commits mischief by fire or 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. "
15. On the basis of materials surfaced during the
trial, the appellant/accused was examined under Section 313 of
the Cr.PC by putting incriminating circumstances/evidences
surfaced against him, which he denied and shows his complete
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innocence.
16. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
judgment dated 10.01.2013 and order of sentence dated
15.01.2013 for the offences under Section 436 of the IPC.
17. During the trial, the prosecution has examined
altogether four witnesses, namely:
1. P.W.1 – Neman Dusadh
2.P.W.2 – Mohan Paswan
3.P.W.3 – Ram Prawesh Paswan
4. P.W.4 – Dhanu Paswan (Informant)
18. From the perusal of records, I proceed to analyse
the statements of the prosecution witnesses whether they have
supported the prosecution case.
(i) P.W.1 Neman Dusadh- He has stated that the
occurrence took place on 28.02.1989 at about 6:00 P.M. He was
present at the cabin of Naresh Singh along with his son
Tileshwar Manjhi and rushed to the place of occurrence on
hearing alarm. He saw Basudeo Yadav lighting a matchstick and
setting fire to the house of his brother. He further stated that
Ishwar Yadav was armed with a country-made gun and fired,
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while another accused hurled bombs. He identified several
accused persons present at the place of occurrence. In cross-
examination, he admitted prior land disputes and proceedings
under Sections 145 and 107 Cr.P.C. between the parties. He
detailed the land particulars, including khata and plot numbers.
He stated that he saw smoke from bomb explosions and the act
of setting fire from a distance of about five bamboos. He further
stated that the fire was extinguished and some cereals were also
burnt. He denied the suggestion of false implication due to land
enmity.
(ii) P.W.2 Mohan Paswan- He has deposed that the
Investigating Officer seized burnt bamboo pieces and other
materials in his presence and his thumb impression was
obtained on the seizure list. In cross-examination, he admitted
that the informant is his maternal uncle and that he has been
residing with him since childhood. He further admitted that
there existed land disputes and proceedings under Sections 144
and 145 Cr.P.C. between the parties. He also admitted that the
seized articles were not produced before the court. He denied
the suggestion that no seizure was made and that he has falsely
deposed.
(iii) P.W.3 Ram Prawesh Paswan- He has stated that
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the occurrence took place on 28.02.1989 at about 6:00 P.M.
while he was at his house. He deposed that several accused
persons came raising alarm, assaulted, and set fire to the houses
of Dhanu Paswan and himself. He further stated that one
accused hurled bombs and Ishwar Yadav fired from a firearm.
He stated that Muneshwar Paswan sustained splinter injury on
his knee and was taken for treatment. In cross-examination, he
admitted land disputes and prior proceedings under Section 144
Cr.P.C. He stated that he had obtained land under Parwana and
described the location and boundaries of the land. He further
admitted earlier disputes relating to cutting of paddy crops. He
stated that he saw smoke and flames and that the fire was
extinguished with water from a well. He also admitted that no
bloodstains were found on clothes or cot. He denied the defence
suggestion that no such occurrence took place and that he has
falsely deposed.
(iv) P.W.4- Dhanu Paswan- He, being the informant,
has deposed that the occurrence took place on 28.02.1989 at
about 6:00 P.M. while he was present at his house. He has stated
that all the accused persons came near his house armed with
bombs and country-made guns and started abusing at his
doorstep. Upon objection, accused Basudeo Yadav instigated
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others to assault. Thereafter, Mohan Yadav allegedly hurled two
bombs one after another, causing injury to his nephew
Bhuneshwar Yadav. He further stated that Ishwar Yadav fired
twice, however, no one from the informant side sustained injury
from firing. He has further deposed that Basudeo Yadav set fire
to his hut by lighting a matchstick, resulting in burning of the
house. On alarm being raised, villagers assembled and the fire
was extinguished. He proved the written report lodged at Bodh
Gaya P.S., which was marked as Ext. 1. In cross-examination,
he admitted that Neman is his brother and Mohan is his nephew,
and all have separate houses. He described the topography of
the place of occurrence and stated that there was smoke due to
bomb explosions and fire was noticed within 2–3 minutes. He
admitted that only bamboo and straw materials were burnt and
no valuable articles or diesel-related materials were destroyed.
He denied the defence suggestion that no such occurrence took
place or that the case was falsely instituted due to land dispute.
19. The record reveals that P.W.-1 to P.W.-3 are
closely related to the informant (P.W.4) and, therefore, fall
within the category of interested witnesses. Their testimonies
show that they are either family members or close relatives of
the victim and thus have a direct interest in the outcome of the
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case. It is a settled principle of law that though the evidence of
an interested witness cannot be discarded solely on that ground,
the same requires careful scrutiny and cautious evaluation
before being relied upon. In the present case, the conviction of
the appellants has been primarily based upon the testimonies of
these interested witnesses without adequate independent
corroboration from any neutral or independent witness, which
renders the prosecution case doubtful. Therefore, the evidentiary
value of such testimonies requires strict scrutiny while assessing
the guilt of the accused/appellants.
20. The courts have consistently held that interested
witnesses are prone to exaggeration, omission, or distortion of
facts to favor their own position. Consequently, their evidence
cannot be deemed wholly reliable or sufficient on its own to
establish the charges. It is imperative that such testimonies be
corroborated by independent, credible, and unimpeachable
evidence before any adverse inference or conviction is drawn. In
this regard, reference can be drawn from the judgment passed
by the Apex Court in para nos. 32 and 33 in the case of Nand
Lal v. State of Chhattisgarh, (2023) 10 SCC 470, which are
reproduced hereinafter:
“32. Undisputedly, the present case rests on
the evidence of interested witnesses. No
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doubt that two of them are injured witnesses.
This Court, in Vadivelu Thevar v. State of
Madras [Vadivelu Thevar v. State of Madras,
1957 SCC OnLine SC 13 : 1957 SCR 981 :
AIR 1957 SC 614] , has observed thus : (AIR
p. 619, paras 11-12)
“11. … Hence, in our opinion, it is a sound
and well-established rule of law that the
court is concerned with the quality and not
with the quantity of the evidence necessary
for proving or disproving a fact. Generally
speaking, oral testimony in this context may
be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly
unreliable.
12. In the first category of proof, the court
should have no difficulty in coming to its
conclusion either way — it may convict or
may acquit on the testimony of a single
witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or
subornation. In the second category, the
court equally has no difficulty in coming to
its conclusion. It is in the third category of
cases, that the court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial.”
33. It could thus be seen that in the category
of “wholly reliable” witness, there is no
difficulty for the prosecution to press for
conviction on the basis of the testimony of
such a witness. In case of “wholly
unreliable” witness, again, there is no
difficulty, inasmuch as no conviction could be
made on the basis of oral testimony provided
by a “wholly unreliable” witness. The real
difficulty comes in case of the third category
of evidence which is partly reliable and
partly unreliable. In such cases, the court is
required to be circumspect and separate the
chaff from the grain, and seek further
corroboration from reliable testimony, direct
or circumstantial.”
21. In the instant case, it is evident that all the
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prosecution witnesses are interested witnesses, having direct or
indirect stakes in the outcome of the matter. Their testimonies,
therefore, cannot be accepted at face value without careful
scrutiny. What emerges from the settled principles of law is that
the evidence of interested witnesses must be examined with
caution but cannot be discarded merely on the ground of
relationship or interest. Where such witnesses are found to be
neither wholly trustworthy nor entirely unreliable, the Court
must carefully scrutinize their testimony to determine its
credibility and probative value. If the testimony of an interested
witness is clear, cogent, consistent, and inspires confidence, it
can form the basis for conviction, even in the absence of
independent corroboration. However, where the evidence is
riddled with contradictions, improvements, or material gaps, its
reliability may be doubtful, and conviction based solely on such
testimony would be unsafe. The guiding principle remains that
the Court must weigh the testimony of interested witnesses
pragmatically and cautiously, ensuring that the conviction is
founded on credible and trustworthy evidence.
22. The records disclose that the Investigating Officer
was also not examined during the course of trial. Undoubtedly,
Investigating Officer is a material witness, being essential to
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explain the manner in which the investigation was conducted
and the steps taken during investigation. His examination also
affords the defence an opportunity to test the fairness of the
investigation. However, it is well settled that the mere non-
examination of the Investigating Officer does not ipso facto
vitiate the prosecution case. The effect of such omission has to
be assessed in the facts and circumstances of each case,
particularly with regard to whether any prejudice has been
caused to the accused and where the ocular and other
substantive evidence is otherwise found to be cogent, reliable
and trustworthy, the prosecution case cannot be rejected on that
ground alone. In this regard, reference can be drawn from the
judgment passed by the Apex Court in para no. 18 in the case of
Rajesh Patel v. State of Jharkhand, reported in (2013) 3 SCC
791, is reproduced hereinafter:
“18. Further, neither the doctor nor the IO has been
examined before the trial court to prove the
prosecution case. The appellant was right in
bringing to the notice of the trial court as well as
the High Court that the non-examination of the
aforesaid two important witnesses in the case has
prejudiced the case of the appellant for the reason
that if the doctor would have been examined he
could have elicited evidence about any injury
sustained by the prosecutrix on her private part or
any other part of her body and also the nature of
hymen layer, etc. so as to corroborate the story of
the prosecution that the prosecutrix suffered
unbearable pain while the appellant committed rape
on her. The non-examination of the doctor who had
examined her after 12 days of the occurrence has
not prejudiced the case of the defence for the reason
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that the prosecutrix was examined after 12 days of
the offence alleged to have been committed by the
appellant because by that time the sign of rape must
have disappeared. Even if it was presumed that the
hymen of the victim was found ruptured and no
injury was found on her private part or any other
part of her body, finding of such rupture of hymen
may be for several reasons in the present age when
the prosecutrix was a working girl and that she was
not leading an idle life inside the four walls of her
home. The said reasoning assigned by the High
Court is totally erroneous in law.”
23. The learned trial Court has not given due
consideration to the lacuna as pointed out by the defense, even
considering that the prosecution has also admitted that there was
a civil dispute regarding a piece of land and P.W.-4 (informant)
has admitted that the appellant is his co-villager and the
proceeding under Section 107 and 145 has also been contested
between them. I am of the view that the learned trial Court has
committed serious error in arriving at a conclusion that the
appellant has committed the offence punishable under Section
436 of the I.P.C. The material contradictions as referred above
were not noticed by the learned Trial Court, which resulted in
perverse finding against the sole appellant for recording
conviction against him and to impose the sentence. In order to
prove offence punishable under Section 436 of the IPC, it is
necessary that the prosecution must establish basically the
offence of mischief. In other words, it is necessary to establish
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by evidence (i) that the accused caused destruction of the
property (ii) the act of destruction resulted in diminishing the
value or utility of the property or injury to certain person or
property (iii) the accused had committed the act intending or
knowing that he was likely to cause loss or damage to any
property (iv) causing of such injury or wrongful act. It is further
necessary to establish (v) that the property injured consists of a
building (vi) that the building was ordinarily used as a human
dwelling or as a place for custody of property. Considering all
these essential ingredients required to be established for
commission of offence punishable under section 436 IPC and
considering the entire evidence on record and having regard to
the peculiar facts of the case, I am of the opinion that if the
impugned judgment is allowed to stand, it will lead to
miscarriage of justice, as such, the impugned judgment is liable
to be quashed and set aside.
24. Accordingly, the present appeal is allowed.
25. The impugned judgment dated 10.01.2013 and
order of sentence dated 15.01.2013 passed by Adhoc Addl.
District and Sessions Judge III, Gaya is hereby set aside.
Consequently, the above-named appellant/accused is acquitted
from all the charges levelled against him. Since the appellant is
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on bail, as such, he is discharged from the liability of his bail
bonds. The fine deposited by the appellant, if any, shall be
refunded to him.
26. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
(Purnendu Singh, J)
Niraj/-
AFR/NAFR N.A.F.R.
CAV DATE N/A
Uploading Date 06.04.2026
Transmission Date 06.04.2026
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