^^ CRIMINALAPPEALNO<?fJiOF1993> I^Sj-Lffl.1, APPELLANT Churanmani, aged about 25 years, S/o Ramsahay, resident of village- Chilfi, Police Station-Pandariya, District- Bilaspur (M.P.) (NowC.G.) RESPONDENT Versus State of Madhya Pradesh (now State of Chhattisgarh) tljw-l*111 :?s|-ip^i-:-;FSp:.K^^ POST FOR TUDGMENT ON / Februaiy, 2003. Sd/- L.C.BHADOO Judge .^ig;^- •:...??'-. y?/; CRIMINAL APPEAL NOjTlS OF 1 99%) 1 ^^ /Z^03 APPELLANT Churanmani, aged about 25 years, S/o Ramsahay, resident ofvillage- Chilfi, Potice Station-Pandariya, District- Bilaspur (M.P.) (Now C.G.) RESPONDENT Versus State of Madhya Pradesh (now State of Chhattisgarh) .^i-.-^ihsi Appellant by Shri M.L.Postore, Advocate. Stete by Miss Sharmila Singhai, Deputy Govt. Advocate. JUDGMENT Bv Justice L. C. Bhadoo. istsSSSSS^* R*3'""1"' '•." 1. At the out set leamed counsel for the accused suhmitted that inadvertently A^ the present petition against fhe conviction ofthe petitioner CtifljlSnani has been fUsd as 'Criminal Revision' whereas it should have been a 'CrimJnal Appeal' against the judgment dated 11 FetMTury, 1993 passed by the leamed Fourth Additional Sessions Judge, Bilaspur (Lmk Court Mungeli) jn Sessioas Case No. 92/92 by which fhe petitioner Churamani has been convicted imder section 436/34 ofthe Indian Petial Code and sentenced to undergo one year's rigorous imprisoiunent. The ofher coaccused namely Jiwanbai, Budhiyarin and Poosmati were also convicted for the said offence but tfaey were sentenced to unprisomnent till rising of fhe Court and in addition to Ifaat each one ofthem have been sentenced to pay a fine ofRs.1000/-, in default ofpayment offine amount to undergo 6 months R.I. Against tfais cnnviction and sentence only appeUant has fMed tfais petltlon. 2. Leamed counsel for tfae petitioner requested that this 'Criminal Revision' should be treated as 'Critninal Appeal' agaiast the above judgpient. The .i.i-n.a'fBMftS^Q ^|ul^J^:^fA':'s"r'"3'"n^-* a<5; request being reasonable is accepted and this petition is converted to 'Criminal Appeal'. The relevant facts in brief for disposal of this criminal appeal are that on 17 November, 1991 one Rameshwer , brother of complainant Jaleshwer brought Ashwani Bai @ Ishmat Bai D/o Ram Sahai to tfae residence ofhis brother Jaleshwer and requested him to allow her to reside in the house. When Jaleshwer refased to accede fhe request, Ram Sahai (father of fhe girl) quarreled with Jaleshwer, fhreatened him that he wiB set his house on fire and went to lodge report in Patharia police station. When Ram Sahai left tfae place, after 1-2 hours at about 12 p.m. wife ofRam Sahai namely Jivanbai, daughter -Poosmani, son- Churanmani and daughter- Budhiyarin Bai came with stone, hay and matchbox and started abusing Jaleshwer in fi-ont of his house. Looldng to tfais Jaleshwer went into his house along with his wife and closed the door of the house. At fhat time Jagdish (P.W.3), brother-in-law of Jaleshwer reached the house and saw that the accused persons mentioned above were standing fhere and said fhat they set the westem part of the house of Jaleshwer on fire. Ih spite of Tagdish asked them not to do this but they did not agree to his request and set the house on fire. Then Jagdish shouted and called Jaleshwer and his wife Dwarika Bai. On heariag fhe shouting of Jagdish they came out and started shouting on that other persons eanie on the seen and they extinguished the fire. By this &e property worth Rs. 100-150 was bumt. Jaleshwer went to Pandaria police station and submitted report Ex.P/1 thereafter. On the basis oftfais written leport the police registered the case and started investigation. After investigation the police filed charge-sheet against the accused persons Jiwan Bai, Chummani, Budhiyarin and Poosmati for commission ofthe offence punishable under section 436/34 offhe Indian Penal Code. A&er hearing the arguments leamed Additional Sessions Judge &amed eharges against fhe accused persons for the aforesaid offence. All the accused persons denied the charges. He recorded the statements offhe six ^ prosecution witnesses and fhereafter the statements of accused persons under section 313 of the Criminal Procedure Code were recorded. However the acciised did not adduce any evidence in their defence. After hearing the arguments of leamed counsel for the accused persons and Public Prosecutor leamed Additional Sessions Judge passed the impugned Judgment. Arguments of Shri M.L.Postore, leamed-counsel for the appeUant and Miss Sharmila Singhai, leamed Deputy Govt. Advocate for the State heard. Leamed counsel for the appellant argued that fhere are major contradictions m the statements of the prosecution witnesses. Jagdish (P.W.3) is the only eye witoess, he is a chance witness. More over he is brother in law ofJaleshwer therefore, he is an interested witness. He is not the resident ofvillage-Chilfi, he resides in other village. His statements are not corroborated by the ofher witnesses in material particulars. In para-4 of his statement he has stated tfaat other persons are also residing in locality but no one has been exammed by the prosecution. Govind (P.W.4) has stated that by the time he reached to the seen of occurrence <he fire was already extinguished and nobody was there. Therefore prosecution has not been able to prove the offence against the appellant. At the end of his arguments leamed coinisel for the appellant requested that in any case if the offence is found to be proved fhen the accused has already undergone one month unprisomnent and'the property worth Rs. 100 - 150 has been bumt, therefore it is in the interest ofjustice that the accused may be punished to fhe sentence he has already undergone. On the other hand leamed Deputy Govt. Advocate argued that Ram Sahai, husband of accused Jiwan Bai and father of other accused, tfareatened Jaleshwer that he will see tfaat his house is set on fire, when he refused to permit his daughter to reside in his house. Immediately fhereafter tfae accused-appellant along wilfa other accused persons came on tfae scene and as the prosecution witness No.3 Jagdish has stated that the accused <-> '^ 4 KSSiSSKWSsss Churaiunani was having matchbox in his hand to whom Jagdish requested not to set fhe house on &e even Ifaen he put the house on fire, therefore <he judgment of the leamed tnal Court is correct. There is no infinnity in the judgment Ifaerefore there is no merit in this appeal. 10. After hearing the arguments of leamed counsel for (he parties I have gone tiirough the evidence available on the file of fhe trial Court and the judgment ofthe trial Court. It is troe that Jagdish (P.W.3) is brotfaer-in-law ofthe complainant Jaleshwer. He resides in Sahespur village, his evidence caimot be discarded only on the ground that being a relative he is an interested witness and he resides in some other village, therefore he is a chance witaess. However, whUe scrutimzing the statements of Jagdish (P.W.3) with the statements of other witnesses a care has to be taken about fhese factors. Jagdish (P.W.3) has very clearly stated that on Ifae date of occurrence he came to viUage-Chilfi &om his village- Sahaspitr. He came to his sister's house in village-ClhiIfi, he saw that accused Jiwan Bai was having hay, Churamnani having match box, Kushmin Bai and Budhiyarin Bai were having stones in their hands. Seeing tfais I agked them what are you doing, on this Jeewan Bai inserted hay in his sister's house and aecused Chumamani set the hay oa fire by Bghting matehbox. When he asked them not to do tfais they started abusing him and on seeing this he started shouting and called his brotfaer-in-law and sister. On hearing his shouting his twofher-in-law and sister came out from the house and other persons of the village also gathered there. I, I^ainja, Banshi, Govind and others extinguished tfae &e. A part ofthe westem side ofhouse was bumt. Thereafter his brother-in-law went to lodge Ihe report in fhe police station. It is Irue Ifaat only Jagdish (P.W.3) has stated that he saw Churanmam setting the house on fire. Ifwe look at the statement ofJaleshwer (P.W.l) he has very clearly stated in his statement that Rameshwer is his farother. Round about a year back his brother sold his half an acre laad and wanted to go to Dethi because he is declared a vagabond (criminal under police surveillance). At that time in order to take money, Ram Sahai persuaded / <ssw»ssSWs^^9 f^'^f--'^" *•"—•:. • • l his brother Rameshwer to marry his daughter Ashwani Bai and he took money from his brother. When he heard about this, he asked Ram Sahai why he has done this. 15-20 days tfaereafter one day at 9 a.m. his brother Rameshwer came along wilfa Ashwani Bai, daughter of Ram Sahai and asked me to keep Ashwani Bai with us. Then I replied that you have eaten away your share why should I keep Ashwani Bai at my house. On this Ram Sahai asked me that you must keep tus daughter at your house or/otherwise your house will be set on fire. After saying it, Ram Sahai left the seen with Kotwar -Jagna to lodge the report in Pandaria poUce station. Round about 12 O'clock in the mid-day five persons came to his house and they started abusing me and my wife and said that fhey wiU set my house on fire. Jiwan Bai was having hay in her hand whereas Churanmaai was having matehbox in his hand, Budhiyarin by and Poosinati were having stones. When they started abusing, in order to avoid the situation he along with his wife went into the house and elosed the door. Thereafter his brother-in-law Jagdish came on site and he said that accused persons have set his house on fire and he saw the westem comer ofhis house was buming and aU the five accused persons were standing there. Dwarika Bai (P.W.2) has also supported the statement ofher husband and said that Ram Sahai asked them to keep his daughter in yQur residence, when they refased, he started abusing. Thereafier Ram Sahai went to lodge report at police station-Pandaria. After sometime Jagdish shouted that the aecused persons have set our house on fire, on this she and her husband came out and saw tfae accused persons standing near their house. Govind (P.W.4) has said that he is resident offhe same village i.s. Chilfi. His house is at a nunimum distance from the house ofthe complainant Jaleshwer. He stated that a year back Jaleshwer came to his house and infonned fhat his house has been set on fire by the aceiised persons. When he came on the spot he saw that one comer of Ifae house was bumt and Jaleshwer informed him (hat the accused persons have set his house on fire. Shiv Sahai (P.W.5) who is Patwari of that village stated that on fhe rsquest of tfae Sub-, <3^ I^N^ Inspector he prepared tfae sight map (Ex.P/2). R. K. Diwedi (P.W.6) has also stated that on receiving the report Ex.P/1 from Jaleshwer the case was registered, he went on fhe spot and recovered a half bumt log( uicft ) through memo Ex.P/5, he recorded the statement and got prepared the sight map (Ex.P/2) by the Patwari. 11. Ifwe look at these statements, even the counsel for the appeUant has not disputed the fact of buming of the part of house of the complainant Jaleshwer. 12. Now coming to Ihe question of setting the house of complainant on fire, if we look at the evidence adduced by the prosecution to prove the charge against accused appellant along wifh other accused persons, the above evidence goes to show that Churanmani fhe accused/appellant was the person who set the house (chapper) on fire and Jagdish (P.W.3) saw him personally and there is no reason why Jaleshwer viz. complainant unnecessarily implicate Churanmaai and otfaer accused persons in a criminal case without aay rhyme and reason, and particularly immediately before the house was set on fire Ram Sahai the father ofaccused/appeUant threatened the complainant fhat he will see that his house is set on fire. This fact itsetf shows fhat the house was set on fire by the applicant; as such there is no substance in the arguments of leamed coimsel for the appellant. 13. The prosecution has been able to prove the charges beyond all reasonable doubts fhat the accused ChDramnani along with olfaers set the house (Chapper) ofthe complainant -Jaleshwer on fiie and caused damage to the property. As such the offence under section 436/34 against fhe appeUant Churamnani has been proved by the proseeution. The finding of fhe leamed trial Court on this count is correct. 14. As far as the question of not producing other neighbouring witnesses is concemed, it is not necessary to examine number of witnesses. It is common Isnowledge that in such a dispute nobody wants to come forward r l-s^SsS^ "§«'» ^'y^f-'" to depose against anyone particularly when there is a personal dispute between the villagers. The statements ofprosecution witaesses No. 1 to 5 are sufficient to prove the offence against the appellant. 15. In view ofthe above I am of the opinion that the decision of fhe trial Court is correct, there is no mfinnity in the judgment passed by the tfial Court and the accused Churamnani has been rightly held guilty for commission ofthe ofifence under section 436/34 ofthe-I.P.C. 16. However on the question of sentence imposed on the appellant by fhe trial Court is concemed tfae arguments of leamed counsel of fhe appeUant that tfae appellant has aJready remained injail for one month, the incident is of the year 1991 as such 11 years have elapsed, other coaccused have been awarded sentence only up to rising of the Court and fine of one fhousand rupees on each aecused, and that the accused/appeUant has already suffered a lot during trial and appeal. The appeUant remained in custody from 25.11.1991 to 19.12.1991. 17. Ih view of tfae above discussion this appeal is partly allowed. While maintaining Ihejudgment and order ofconviction passed by the trial Court I reduce the sentence ofimprisomnent from one year's R.I. to fhe sentence already undergone by the appellant and in addition to this impose a fine of Rs. 1000/-. In default of payment of fine amount the appellant shall undergo one month's S. I. The amount offuie shall be deposited within a period ofone month from today. Sd/- L.C.BHADOO Judge s y - .^v'_