a, gij v y 1N THE HIGH COURT OF CHHATrISGARH AT BILASPUR (C.G.) V‘ l Qg /2004 CR.A‘NO. ' Ramsaran alias Bauna, son of Shri Ramkishun, aged about 25 years, resident of village Belpan, P.S. Takhatpur, District BilaSpur, (C.G.) APPELLANT IN JAIL ‘ x VERSUS The State of Chhattisgarh, through : the S.H.O., Police Station Takhatpur, Distt. Bilaspur (CG) CRIMINAL APPEAL UNDER SECTION 374(2) xi“, OE THE CRIMINAL PROCEDURE CODE, 1973. aka/LGEEPONDENT - s a , HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeai No.1105/04 Ramsamn alias Baum Vs. S‘m'fe of Chha’rfisgnr‘n r Pos'r for Orders : 17 ,07.2i)06 dl S- Dilip Raosaheb Deshmukh Judge 20 \ HIGH C.OURT OF CHHATTI5GARH AT BILASPUR i CnAggeaI Na.11o5/2oo4 Befare z Hon‘ble Shr‘l Diiip Raosaheb Deshmukh. J . ' "Ramsuran alias Baum Vs. Smfe of Chhnf‘risgarh ‘ Pmmii— t g Sh .§.5.Bhafia, Pane! Lawyer for ‘rhe Sfnfe. ri M W ‘ Ku. ni'm Upudhyay, learned Counse‘ for The @pqllanf. ~ (Deiivered on’l7 07.2006) his ripped is div-awed ageinsf fhejudgmen‘r dafed 27-11-2004 deivered by Shri N.K.Chandmvanshi, 9"" Addifiona! Sessions Judge (F‘T.C.), Biluspur in Sessions Trial Number-347/2004 whereby fhe ‘qppelkmf was c‘oinvicfed under- ‘Secfion-436 of IPC and was semenced 1’0 undergo rigorous imprisonmenf for 5 years ond to a fine of Rs.3,000/— and in defouif of puymen? of fine +0 undergo addi‘rional rigorous imprisonmenf for 3 monfhs. 2. ' Briefiy sfafed The prosecution sfory is 1hn‘r Dhun Sui PW—1 was running a smoll makeshift ho‘l’el at Village—Baipan, Police Smfion- akha'fpu and on 13-06-2004 aflabou'r 10 PM. whiie he was sleeping inside fhe ho'rel, the appeilant called his name and demmded half KG. mixture. Dhan Sai PW-l weighed the mixture and was about to deliver it to the appellant when a quarrel ensued. The appellant threatened to set the otel on fire and lifted the chimney and set the mattresses on fire. A a result of this, the hotel which was entirely made of mattresses was completely burnt. I/ A T ! Tr h i s ;3. The appeliam' who was charged under Section-436 of IPC by §fhe learned frial Judge, abjur'ed fhe guilt pleaded innocence and examined Bhagira‘rhi D.W.‘1 and Remshnmn D.W.—2 as defence fwimesses. The prosecution examined as many as 11 witnesses. Reiying Eupon 'H1e evidence led by ihe prosecufion, The learned friai Judge ‘convicfed and sentenced 1'he appeiian‘i as aforesaid in para-1 (supra). 4. Learned counsel for 'I’he'appellanf urged ‘rha‘r ihe evidence led by fhe prosecution did not establish 1he“ guilf of 1he appellant under V ‘$€fion:436 of IPC since none of The wifnesses examined by ‘rhe prosecution had seen fhe appellant selling fire fo ‘rhe shop of Dhan Sui PW—I. If was also urged fhaf The descripfion of the shop as given by Dhan Sai PW-1 in para-16 of his testimony clearly goes to show ~ fhaf i? was a femporary makeshifl enclosure by‘ma'Hresses and could no'i have comained the material shown in panchnama Ex.P—4 i.e. 11 tins of Oil, 6 jars of Dalda, 2 bags of sugar, 3 bags of Maida, 4 bags of Potato, 2 bags of Onion, 30 KG. of Milk PoWder, 25 K6. of Tea. 2 bags of Bason, 50 KG. of Mutfer, 4O KG‘ of Dal, fire wood wor'th Rs.5,000/—, Two Tolas of Gold, 2 KG. of Silver ornaments, wooden counter table and cooking utensils and 5 Nos. of Sheep etc. The admission made by Dhan Sai PW-1 clearly revealed that a false FIR. was lodged and o completely bogus panchnama of the loss was prepared vide EXP-4. It was also urged that para~4 of the testimony of Dhan Sal PW—1 did not rule out the possibility that his shop accidentally caught fire and accused-appellant was falsely implicated. In the alternative, it was also urged that the incident was an off-shoot of a sudden quarrel and was not premeditated and the loss sustained by Dhan 5ai was also meager. Hence, interest of justice would be served if the appellant was sentenced to the period already undergone by him. On fhe ofher hand, Shri M.P.5.Bhn1’iu, Panel Lawyer- fdr 1he S'fnfe argued in supporf of fhe impugned judgment 5. Having heard riva! submissions, 1 have perused 'rhe record. Dhan Sai PW-l admified in para-16 of his msfimony 1haf his shop did n0? have a door and maffress was mereiy hanging in ifs place. He also admm'ed #hai ceiling was also made of ma'rfresses and gunny bags and his shop was purely of a iemporary na‘rure In para-17 he also i admrrfed fhal' during fair efc he used To fold The mafh-esses and fake The shop 1’0 ofher place. Considering the above admssion, The panchnama E;<. P.4 of goods and caTTle burnT ih The fire appears To be wholly false and nof worTh credence. 6. The TesTimony of Dhan Sal PW 1 m para-4 shows ThaT during a quarrel wuTh The appellanT, The appellanT had picked up a burning chimney inside The so-called hoTel whereupon he had held The hand of The appellanT who pushed him. This TesTimony is whollyvcorroboraTed by Ramhin Baiv PW—2 who sTaTed ThaT during The quarrel The appellanT lifTed The chimney inside The hoTel and on her resisTance pushed her as also her husband and ThereafTer The appellanT seT The maTTresses on fire wiTh The help of The chimney aT several places. The TesTimony of Jageshwar PW-3 also corroboraTes The TesTimony of Dhan Sai PW—l and Ramhin Bai PW-Z and shows ThaT The shop of Dhan Sai made only of maTTresses quickly caughT fire. He saw The appellanT emerging from The hoTel of Dhan Sai PW—1 and running away and caughT him. The TesTimony of Binu PW—5 also corroboraTes The TesTimon‘y of Dhan Sai PW-1 abouT a quarrel having ensued wiTh The appellanT in his shop. This wiTness also deposed ThaT he saw The appellanT running Towards The basTi afTer The shop caughT fire and ThereafTer wiTh The help of The villagers, The appellanT was caughT and Tied wiTh a rope. Gopal PW-6 also corrobomfed +he above fesfimony and stated fhaf on seeing The hotel of Dhan Sui PW-1 in finmes, he also chased and caugh‘r fhe appellant Phool Singh PW-7 and Ram Singh PW-9 have also corroborafed fhe above version. 7.1 Having ‘rhus considered lhe evidence led by fhe prosecu'rion in ifs en'rirety fhere remains no? even an iota of doubi' fhaf The appellant was the perpetrator of the crime and had set the purely temporary makeshift shop of Dhan 5m PW—1 made of mattresses on fire. Convnction of the appellant under Section-436 of IPC Is thus well founded and does not call for any interference. So far as the sentence awarded to the appellant by the learned trial Judge is concerned, the appellant has alreadyundergone incarceration for a period over Z years since he is in jail from 14-0§-2004. Considering the facts and circumstances of the case and the act of the appellant being without premeditation and a result of sudden quarrel with Dhan Sai PW-1 as also the purely temporary nature of his shop and the loss occasioned to Dhan Sai, interest of justice would be served if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone by him. 8. In the result, this appeal is partly allowed. Conviction of the appellant under Section 436 I.P.C. is maintained. However substantive sentence of imprisonment awarded by the learned trial Judge is reduced to the sentence already undergone by the appellant. Sentence of fine awarded by the learned trial Judge is maintained. H i sal- l DllIp Raosaheb Deshmukh i i Judge : H