2@\ IN 'F'HE HIGH QDURT OF ¢HHATTE$$ARH AT: Bumswn 'Singk gémh Cr” A ea! N0. ‘ 0 2/ OF 2M8 WA PPELKLANT: :7 :m 3cm ‘3 Purshottam Dhimar, aged 26 years, son of Shri Motilal Dhjmar, occupatian agriculture, resident of Village Beltakn', P.S. «Kharora, District— Raipur (C.G.). VERSHJS 6 s“ $§ RESPONDENT State of Chhattisgarh, through the police station Kharora, district Raipur (C.G.) @REMINAL APPEAL UNDER §EGTION 37/ §2§ OF THE cOEE 3F cRIMINAEn PRGGEDURE, 1973. A HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr.‘Justice Pritinker Diwaker) Criminal Appeal No. 402 of 2008 Purshottam Dhimar APPELLANT VERSUS RESPONDENT State of Chhattisgarh. Shrl somnath Verma counsel for the appellant . Shn Akhll Mishra Dy GA for the respondent/State .CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (1s 09.2009) This appeal Is directed against the judgment dated 15 1 2008 passed by the Sessmns Judge Ralpur m Sesswns Trial No. 243/2007 convicting the accusedlappellaht under Section 436 of the Indian Penal Code and sentencing him to undergo rigorous Imprisonment for five years and pay fine of Rs 500 In default of payment of fne to further undergo RI for Six months 2. Case of the prosecution in brief tethered 12.11.2007 in between 9.30 and 10.00 p.m. the appellant came towards the rear portion of the mud-built house of the complainant Jagmohan Satnami (PW-2) With a plastic container containing kerosene and after putting the house on fre he fled away Dehati Nalisi (Ex ~2) was registered on the same night and the FIR Ex P 10 was ' registered onthe next dayie 1311 2007 After recording the statements of the Witnesses and on completion of the investigation charge sheet was fled. 3. So as to prove the guilt of the accused, prosecution has examined as many as six witnesses. Statement of the accused was also recorded under section 313 of the Code of Criminal Procedure / -2“ m which he denied the charge levelled against hlm and pleaded Innocence 4. Counsel for the appellant submits that the conwctlon ls based solely on the ewdence of the complainant namely Jagmohan Satnaml (PW 2) and Anjore Das (PW 3) According to him complamant Jagmohan Satnaml (PW 2) has not seen the appellant putting hls house on Fre He submits that this Witness himself has stated that at the relevant time he was sleeping In his house and on hearing the ‘voice of his son Anjore Das (PW-3) he woke up and saw. the accused/appellant running away after putting his house on me and entering his own house. He submits that when the complainant was sleeping at the relevant time it could not have been possrble for him to see the inordent As regards the statement of Anjore Das (PW 3) counsel for the appellant submits that this Witness was also sleeping at the relevant time and therefore he too could not have seen the incident Counsel for the appellant further submits that as the mcrdent took place during Diwali festival the possrbility of the house of the complainant being put on fire due to bursting of crackers cannot be ruled out 5. On the other hand counsel for the respondent/State supports the 1udgment impugned and submits that the prompt report to the inCident was lodged and both the eyeWitnesses namely Jagmohan Satnami (PW-2) and Anjore Das (PW-3) have seen the appellant ‘ running away after putting their house afire and then entering in his, own house According to him investigating Officer N K Thakur (PW-6) who had promptly reached the spot and prepared Nazri Naksha and found the house of the complainant havmg been burnt. Counsel for the State‘further submits that in the! eVidence of Narendra Kumar Naurang (PW~5) he has stated that on the memorandum of the accused/appellant a plastic Jericane from which smell of kerosene was emanating and a red colour shirt were seized. He further submits that on account of the incident the complainant has suffered a loss amounting to Rs. 20,000 — 25,000. Lastly he ' @ .7 Z ’B" submits that the impugned judgment of the tria! Court is just and proper and needs no interference in this appeal. 6. Heard counsel for the parties and perused the material available on record including the judgment of the trial Court. 7. Complainant (PW-2) himself has stated in his evidence that after hearing the voice of his son Anjor Das (PW-3) he came out of the house and saw the accused/appellant running away from the place of incident and entering in his own house. The evidence of this witness has been corroborated by the evidence of Anjor Das (PW-3). Moreover, on the memorandum of the accused/appellant one plastic jericane emanating the smell of kerosene and a red colour shirt have been seized by the investigating officer N.K. Thakur (PW-6). Thus there is sufficient material on record to show that it is the appellant who committed mischief by putting the dwelling house of the complainant on fire and thereby caused damage to it‘ in these circumstances, this Court is of the view that the conviction imposed on the accused/appellant appears to be just and proper and no interference with the same is warranted. Conviction is thus maintained. 8. As regards sentence, counsel for the appellant submits that the appellant is a poor person and is in jail since 14.11.2007 and therefore he may be sentenced to the period already undergone by him. ln support of this argument, he placed reliance on a decision of the Orissa High Court in the matter of Rabindranath Gounda vs. $tate reported in 2003 Cri.L.J. 2752 in which the accused had remained in jail for one year against the awarded sentence of RI for three years but the Court reduced it to the period already undergone. xiv In view of aforesaid discussion, the appeal is partly allowed. Conviction part of the judgment is maintained. As regards sentence, the appellant is reported to be in jaii since 14.1 1 .2007 and thereby he has completed more than one and a half years of jail sentence. The period for which the appellant remained in detention would 9. @ _Qw ’ suffice to meet the ends of justice. Accordingly, the appellant is sentenced to the period already undergone by him and he is directed to be set free at once if not required in any other case. However, the sentence of fine is enhanced to Rs. 2000 from that of Rs. 500 ln defautt thereof he would further undergo Rl for three months. Sd/~ Pritinker Diwaker Judge 1 0. Appeal thus partly succeeds.