^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single^ench : Hpn'bJe^hriRaLeshwarlaiJJianwar^J, Criminal Appeal No. 222 of 93 Shivcharan versus State ofMadhya Pradesh (now C.G.) JUDGMENT PostforpronouncementofJudgment 25' -11-20Q9_ Sd/- R.L. Jhanwar Judge ' f il '^ HIGH COURT OF CHHATTISGARH AJTBILASPUR Cr. ARD. No.222/93 SB: Hon'ble Shri Justice R.L. Jhanwar APPELLANT RESPONDENT Shivcharan son of Pilau Dhobi, aged about 32 years, agricultural labourer, resident of village Gatra, P.S. Baradwar, Distt. Bilaspur Versus State of M.P. (Now CG) Appearance: Shri Jamil Akhtar Lohani, counsel for the appellant. Shri Arvind Shukla, P.L. for the respondent/State. JUDGMENT (Delivered oruj'Tl 1.2009) This appeal is directed against the judgment of convicdon and order of sentence dated.06th February, 1993 delivered in Sessions Case No.288/91 by the Additional Sessions Judge, Sakti, Dist. Bilaspur whereby the appellant was convicted under Section 436 of the I.P.C. and sentenced to five years ngorous impnsonment. •» 2. Brief facts of the prosecution are that the appellant suspected Hirabai, wife of, the complainant, to be a witch. On 13.05.1991 at about 11.00 p.m. when the complainant and his family were sleeping, the appellant armed with a Tangia (small axe) came tp the house of the complainant threatening to kill Hiraba^:' and hurled filthy abuses. Thereafter, the appellant shut the door from outside and forcibly hit the door (made of tin) by that weapon thereby caused a pinhole. Seeing this, the complainant went away from backside to call Kotwar. After sometime,: the appellant again came with a plate of buming charcoal and set the house on Hre and at the same time the ^ .(-Fis^ "y .'l;if '%^'./ complainant accompanied by Kotwar reached there. The witnesses who were present there saw the incident. Sonau (the complainant) with the aid of co-villagers extinguished the fire and on the very next morning, a report was lodged at Police Station. On the memorandum of appellant weapon of offence was seized. Statements under Section 161 of the Cr.P.C. were recorded. 2. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Sakti, who in due course conimitted the case to the Sessions Judge. The Sessions Judge in turn made over the case to the Additional Sessions Judge, Sakti and framed charge under Section 436 ofthe I.P.C. against the appellant who abjured the guilt, pleaded innocence and false implication by the complainant on the ground that the complainant misused the money collected for recitadon of Ramayan. 3. The learned Additional Sessions Judge, Sakti has, after evaluating the evidence available on record and hearing the learned counsel for both the parties, convicted and sentenced the appellant as above. 4. I have heard learned counsel for both the parties. -" v 5. According to the complainant Sonauram P.W.l, he, his wife and children were sleeping in his house. In the night, the appellant armed with Tanglicame and hit the door forcibly with that weapon whereupon he got up and saw the accused was present and hurling filthy abuses. Upon found the appellant bolted the door from outside, he went to call Kotwar Puniram and was waiting for Kotwar and at that time he came to know about his house bein%- set ablaze by the appellant froin Ramnath, to whom one Bodhiram said the incident of setting ablaze of house of the complainant. According to this witness, he saw that his house was being caught fire and so many ^- persons who were present were tiymg to extinguish the fire. This incident was taken place at night on the next day inorning the incident was reported in the police station which is about five kiloraeters away froru his house. The report is Ex.P.l. He also stated that the accused appellant frequently called his wife fo be witch resultHig in his house was sef ablaze by the appellant. In cross-exainination, he stated that at the tiine of incident so many persons ^athered. He also stated that accused came to his house and he heard only his voice and hit the door his house by using heavy force with axe. He also stated that his report is not false. 6. Hirabai, wife of the complainant P.W.2, supported the testimony of Sonauram P.W. 1 . According to her statement, it is clear that the appellant came with axe and hit the door forcibly and also hurled filthy abuses. Seeing this, her husband went to call Kotwar. She also stated that door was made of tin and the appellant caused a pinhole by striking frequently on the door and by that pinhole she saw the appellant coniing towards his house with a plate of buming charcoal and set the roof on fire. At the same time, her husband came and saw that roof of his house catching flre and so many persons who were present there and extinguished the fire. In cross-examination, she stated that her house was not caught fire but accused appellant set her house on fire. 7. Dhaneshwar P.W.3^, who was present at the dme of incident, also supported the statement of complainant and his wife and also stated that at the time recitation of Ramayan was going pn, the appellant came and shouted that he would kill Bend.dri (complainant's wife). According to him, first of all the accused set the roof'jjf his house on fire and thereafter came with a plate of burning charcoal and set the house of the complainant - Sonauram on fire. Then this witness and other persons gathered there and extinguished the fire. According to /.' '•"i-aS^ 'o) this witness, it is clear that the appellant came with a plate of buming charcoal and threw them on the roof of the complainants house due to which fire caught. In his cross- examination, there are some contradictions but these contradictions do not effect on the prosecution version. 8. Ramnath Yadav P.W.4 is another eye witness to witaiess the incident. According to him, 'Ramayan' was going on at the time of incident and at the same time the appellant came and while saying that stop the recitation of Ramayan shouted that he would kill Bendari (wife of complainant - Sonauram). In cross-examination, he supported the version of other witnesses. Kotwar Puniram P.W.5 also supported the version of Sonauram and his wife. He stated that Sonauram came to his house and infonned him that the appellant hurled filthy abused and he went to the house of the complainant he saw that his house was caught fire. He also stated that due to fire being caught on the house of the complainant, roofrazed to ground. 9. According to Sukulram P.W.7, the appellant brought Tangia from his house that was seized vide Ex.P.6. Gokul Prasad P.W.8 also supported the version of this witness and stated that the police recovered Tangia from the appellant. According to this witness,v his statement before the police is Ex.P.7. 10. Another witness Gowri Shankar P.W.10 is investigating officer, who stated that he seized ashes, plate and Tangia, which was seized at the instance ofthe appellant. 11. In ,vieW of the above evidence of the prosecution witnesse<s, it is clear that the appellant set the house of the coruplainant on fire and'-the reason for that only is that he was suspecting Hirabai, wife of the complainant to be witch and hurled filthy abuses. The prosecution has also successfully led the evidence and proved that the house, in which the complainant and his family reside, was set ablaze by the appellant. I am of the considered opinion that the learned lower Court has not erred in convicting the appellant under Section 436 of the I.P.C. and awarding sentence of five years of rigorous impnsonment 12. In the result, the appeal is liable to be and is accordingly dismissed. The judgment of'conviction and order of sentence passed by the learned lower Court against the appellant is well merited and thus maintained. ;-- Sd/- R.L. Jhanwar Judge