¢————f NHMLMEL‘MQEAJ W F ‘ \ \3 IN THE HIGH cwR-r OE JUDxCA'rURE AT JABALPUR MADHYA PRADEsx—x‘\ ; CRIMxNAL APPEAL no1\§§ of 1997 gE'rwEEN Baboola,1}Son of Budéam‘ Gandhafva ageé about 48 years , Occupation Service in the Depth of Home—Guards 4' /’ Ma‘st‘uzi Distt. Bi1aspu: M.P.¢' R/o Gram Tikazi Police Statign APPELLANQ AND 4 State of M.P. through the Police Station Masturi Distt. Bilaspur M.P. -_-- RESPONDEN‘L‘ gyPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINgg gocEDURE .1973 . : ; @ M HIGH COURT OF CHHATT!SGARH BILASPUR SINGLE BENCH : HON’BLE SHRI PRASHANTK MAR MIS RA J. CLA. No. 21 55 of 1997 APPELLANT Baboolal, Veisus RESPONDENT State of MP. (now Chhattisgarh). Shri Somnath Verma. counsel for the appellant. Shri SudhirBajpayee, Deputy Govt. Adx'ocate for the State. JUDGMENT { 16:1 [2011) The appellant has challenged his conviction under Section 436, 506 B, 342, 452 and 323 of l.P.C. He has been sentenced to undergo Rl for six months and fine of Rs.2000/- under Section 436 of l,P.C., Rl for six months, under Section 323 of l.P.C., RI for six months and tine of Rs. 100/-, under Section 452 of I.P.C., Rl for three months, under Section 342 of l.P.C. and RI for six months under Section 506 B of LP‘C. (2) According to the prosecution one Dashrath Gond had ieft the village for earning livelihood elsewhere and handed over his house to complainant Ashok (PW-1). 0n the date of incident complainant Ashok along with his friends PW—2 Santoshr PW-3 Dukhharan, Baratu Yadav, Laia Satnami, Chandrasen Satnami, Arun Satnamil Ramu Satnami, Basant Satnami and Rajesh Satnami were preparing meal in the house of Dashrath Gond Ashok had invited them to celebrate harvesting of crop. At this juncture appellant Babulal came to the place and started enquiring the reason as to why they have assembled in the house and started abusing them. He slapped PW-1 Ashok, PW-2 Santosh, PW-3 Dukhharan and started threatening that he will put on tire the entire house. When Motilal asked him not to do so the appellant brought an ignited wooden stick from his house and after entering .xw ‘ f, into the house of Dashrath Gond put on We the ceiling (Chhappar) of the house and bolted it from outside. Ashok raised the alarm and all of them came out after breaking upon the door. They doused the tire with the help of villagers. Debris worth Rs. 1500/— got burnt in the fire. When Ashok asked Babuial as to why he created mischief by tire, Babuial's son Chandrika came to the place along with Trishul and was in the process of assaulting Ashok and his friend, however, Trishul was snatched from him, in the process causino iniury to zhitho Horil. Bahoran snatched the Trishul and Ashok brought the said Trishul to the Police Station and lodged report \Iide Ex.P/’l. (3) Prosecution examined PW-1 Ashok, PW-2 Santosh, PW-3 Dukhharan, PW-4 Ganeshiya Bai, PW-5 BC. Singh, PW-6 Milan Prasad Mahilange and PW-7 Dr. Smt. S. Milton, the appellant abjured his guilt and stated that he has been falsely implicated. According to him he had gone to the place to convince the complainant and his friends that they should not create nuisance and the house may catch hre but he was assaulted and in the process of snatching the club Ashok sustained injuries and the hut caught tire because of the tire on which they were cooking food and further that he along with Anior Singh and Bahoran Lal doused the tire. He examined one defense witness namely DW-1 Bahoran Lal, (4) After discussing the evidence the trial Court convicted accused Chandrika Prasad Gandharv for offence under Section 352 of l.P.C. and he has been sentenced to undergo Rl till rising of Court and tine of Rs.100f—, as such he has not preferred any appeal. (5) Learned counsel for the appellant has argued that injury caused to the appellant has not been explained. He would further submit that since owner of the house namely Dashrath Gond has not been examined, ownership has not been proved and F.I.R. has been lodged after considerable delay and after deliberation with Sarpanch, therefore it appears to be an after thought. He would also submit that no independent witness has been examined and further that injured witnesses namely Horilal and Purendra have not been examined which creates doubts in the entire prosecution case. (6) it appears that complainant Ashok and his friends, all aged about 16-17 years were enjoying the evening and have organized a picnic kind of celebration in the house of Dashrath Gond in the evening of 05102/1996. The incident took place at about 7-8 p.m. From the cite map EXP/10 and P118 it appears that there are row of houses on both sides of the road. Some houses are adjoining whereas some other houses are separated from each other. From the statement of accused in his examination under Section 313 of Cr.P.C. as well as from the examination-in-chief of defense witness No.1 Bahoran Lal it appears that in fact house of Dashrath Gond caught tire at the relevant time. Thus: the fact that house belonging to Dashrath Gond got burnt is not in dispute. The only thing to be examined is whether in the state of evidence on record the prosecution has able to prove that fire was caused by the mischief committed by appeliant Ashok. (7) PW-1 Ashok is the informant and has proved the F.l.R. Ex.PI1 as also seizure of Trishul vide EXP/2. He has supported and reiterated the contents of F.l.R. He also says that PW-2 Santosh. PW-3 Dukhharan and PW-4 Ganeshiya Bai are his relatives. Since no independent witnesses. not even the Sarpanch or the Kotwar at whose instance the F.l.R. was. lodged, haVe been examined and neither the injured witnesses namely Horilal and Purendra have been examined. the $tatement of PW-1 to PW-4 requires closure scrutiny. .._1j./ (8) One thing is sure that young boys were enjoying their evening and were preparing food in the house of Dashrath Gond. Evidence of PW-1 has been fuiiy supported by the statement of PW-2 Santosh and PW-3 Dukhharan. The appellant was aged about 47 years at the time of occurrence. PW—3 Dukhharan has also supported the case of prosecution Presence of all these witnesses is proved from the accused statement as well as defense witness. All the prosecution witnesses have ctearly narrated the sequences of events in natural course, There is no evidence that there was previous enmity of all the witnesses with the appellant. The witnesses have also suffered injuries as has been proved by PW-7 Dr (Smt.) S. Milton who examined Ashok and submitted report vide EXP/3A and with regard to witness Dukhharan vide EXP/6A. ln view of the law laid—down in the case of Vahula Bhushan alias Vehuna Krishnan vs. State of Tamil Nadu reported in AIR 1989 SC 236, Shrishail Nageshi Pare vs. State of Maharashtra reported in AIR 1985 SC 866 and State of Gujrat vs. Raghunath Vamanrao Baxi reported in AIR 1985 SC 1092, statement of these injured witnesses has to be relied upon. (9) Learned counsel for the appellant has relied on judgment in the matters of State of Gujarat vs. Keshavr'a! Maganhar' Jogani reported in 1993 Cr.L.J. 248. Amulya Kumar Behera vs. Nabaghana Behera. reported in 1995 Cr. L. J. 3559 and Raj Singh vs. state of Haryana reported in 2003 Cr. L. J. 1588, in support of contention that offences of wrongful confinement, criminal intimidation are not proved and the Chhappar of the house does not amount to and is not a building. ln the present case the entire hut has been gutted. The complainant and his friends were wrongful confined in the house by locking the door from outside and there is enough evidence regarding criminal intimidation, therefore.,the judgments relied by #5., the appellant has no application in the state of evidence available on record. The appellant has also relied on Lachya vs. State of M.F. reported in 1981 ll MPWN Short Note No. 195 to argue that when the prosecution failed to examine independent witness offence under Section 436 of I.P.C. is not proved. ln the said case the case of the prosecution hinged entirely on the statement of one witness. However, in the present case there are many eye witnesses and few of them have been examined. Two of the witnesses were iniured and their injuries have also been proved by the doctor and the F.l.R. was also prompt. therefore, the said judgment of MP. High Court is of no assistance to the appellant. (10) Thus, in view of the nature of evidence available against the appellant. lodging of prompt F.i.R. within 2 to 3 hours of the incident, there being no material contradiction in the contents of F.l.R., case diary statement and orai evidence adduced in Court by PW-1 Ashok, PW-2 Santosh and PW-3 Dukhharan as well as the statement of PW-7 Dr. (Smt.) S, Miiton who has proved the injuries on the person of Ashok and Dukhharan, this Court has no hesitation in holding that the prosecution has fully proved its case against the : appellant beyond all reasonable doubt and accordingly his conviction is maintained. (1 1) At the time of commission of offence on 05/02/1996 the appellant was aged about 47 years thus more than 15 V2 years have elapsed after the occurrence and the present age of the appellant is about 63 years. He remained in jail from 06/02/1 996 to 22/02“ 996. Thus, he hassuffered for about sixteen days in jail. Out of the totai fine amount the trial Court has directed that a sum of Rs.1500/- be paid to Dashrath Gond as compensation. However, in view of long lapse of 15 “é years time after commission of offence and the present age of the appeHant, this Court deems it appropriate to reduce the sentence imposed upon the appellant to the period already undergone subject however to payment of additional fme of Rs.10,000/— by the appellant to the said Dashrath Gond; owner of the house: under Section 357 of Cr.P.C. lf the additional tine amount of Rs.10,000l- is not paid to the said Dashrath Gond, the appellant shall be required to undergo the entire sentence awarded to him by the trial Ceurt. The appellant is on bail. His bail bonds are cancelled. He shall appear before the trial Court on 12"“ January, 2912 fer payment of fine er er: his failure to do so, to serve the sentence as directed above. On deposit of additional t'me the trial Court shall call upon Dashrath Gond and make payment of the original amount of Rs.1 500/- as well as the additional amount of Rs. 10,000/- to him. (12} The appeal thus stands allowed in part. /Me r Visa}: . a Prashant Kmnar Mtshii Judgew i i .XgKK 1? /