@ $mgw mmh IN THE HIGH COURT OF JUDICATURE AT BILAS?UR CHHATTISGARH V g1} } /2009 Criminal Appeal N0. K APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE APPELLANT . Preetam Dewar, S/o‘ Vikram Dewar (IN JAIL) ‘ Aged about 30 years, R/o. Nayapara, Mahasamurld, Police Station & Districr — Mahasamund (CG) (9 ww r r o 0/ VERSUS @hg RESPONDENT State of Chhattisgarh, Through: Police Station KotWali, Mahasamund, District Mahasamund '(CG) IGHCOURT CF CH‘HAfTISGARH AT BILASPUR (lHqii; Mr Justice Pritinker Diwaker) , _Crjiminal Appeal No. 543 of 2009 Preetam Dewar APPELLANT VERSUS RESPONDENT state' of’chhattisgam Shrl Mano; Paramape counsel for the appellant Shrl Vlvek Sharma PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 (2! OF THE CODE O CRIMINAL PROCEDURE _J U D G M E N T (27.04.2010) This appeal is directed against the judgment and order dated 2562006 passed by Sesswns Judge Mahasamund In Sessrons Tnal No 34/2009 convrc’nng the accused/appellant for the offence punishable under Section 436 IPC and sentencmg hlm to undergo rigorous imprisonment for'ten years and pay fine of Rs 2 000 in default of payment of fine to further undergo rigorous imprisonment for Six months 2. Case of the prosecution in brief is that on 17 5 2009 FIR Ex P 1 was lodged by Khikhu Bai (PW 1) alleging that her hutment was set on fire by the accused/appellant as a result of which she had suffered the finanCial loss of Rs 1 00 000 After investigation the 'challan was filed on 20 5 2009 by the police 3. So as to hold the accused/appellant guilty, prosecution has examined 06 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of‘Criminal‘ Procedure in which he denied the charges levelled] against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material vailable on record including the judgment impugned. H a '2 - 6. Counsel for the appellant submits that the o'nly eyewitness to the incident namely Janta Devar (PW—2) has not supported the case of the prosecution and has been declared hostile. According to him, Khikhu Bai (PW-1), Dashrath (PW-3) and Chaha Bai (PW~4) — the star witnesses of the prosecution have improved their version before the Court below and they have stated the things before the Court which are not the part of the statement recorded under Section 161 of the Code of Criminal Procedure. He submits that the appellant has been falsely implicated on account of the previous dispute between him and Dashrath (PW—3). He submits that in paragraph 14 of the judgment impugned, it has been observed by the Court below that the investigation has not been done properly and merely the formality has been done by the police. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that on the basis of statement of Chaha Bai (PW-4) it is apparent that it is the accused/appellant who set the hutment of the complainant on fire and thus the conviction and sentence imposed on the appellant are just and proper and need no interference in this appeal. 8.’ Khikhu Bai (PW-1) has stated in her evidence that Chaha Bai (PW—4) is her mother—in-law and their houses are adjacent to each other. This witness has stated that on the date of incident she was not at home and had gone to the doctor for treatment of her son where Janta Devar (PW-2) had informed her that the accused/appellant had set her hutment on fire. Then 'she rushed to the spot and took out her children who were already inside the hut. On account of the incident, money and foodgrains also got burnt. She has stated that the house of Chaha Bai (PW—4) had also got burnt in the said incident. ln'paragraph 5 of her cross examination this witness has stated that in her case diary statement she had stated number of things but if they are not mentioned in it, she cannot tell the reason, lf the court statement and case diaryt statement is kept in juxtaposition, it becomes apparent that there are 1 material contradictions and omissions in the same. She has, categorically stated that at the relevant time her husband namely‘ Dashrath was not in the village and had gone to Raipur. Janta Devar 7Q t (PW-2), the sole eyewitness to the incident has stated that on the date of incident at about 1141.30 a.m. there was some dispute between the accused/appeilant and Dashrath (PW-3). He saw the house of Chaha Bai (PW-4) and Dashrath burning and then he went on his bicycle to inform the incident to Khikhu Bai and Chaha Bai. This witness has stated that he did not know as to how the houses of Khikhu Bai and Chaha Bai were burnt. At this stage, this witness has turned hostile. Dashrath (PW-3) has stated that he was informed by his wife that their house had got burnt. Chaha Bai (PW-4) has stated that it is the accused/appellant who had set her house on fire and that she had seen him setting her house on fire. In cross examination this witness has stated that if her statement has not been recorded by the police, she cannot tell the reason therefor. If case diary statement of this witness is seen it is revealed that she has stated that her hut was set on fire by the accused/appellant whereas Janta Devar (PW-2) has stated in his evidence that he had not seen the person setting the house of Khikhu Bai on fire. it is relevant to note that both Khikhu Bai and Chaha Bai had gone to lodge the report which is clear from the statement of the Investigating Officer and had this witness seen the incident of her house being set on fire by the accused/appellant, the same would have come in the FIR. Subhash Lal (PW-6) Assistant Sub Inspector who had conducted the investigation has supported the case of the prosecution. 9. Having thus undertaken the minute scrutiny of the evidence available on record, this Court is of the considered opinion that prosecution has utterly failed to prove the fact that it was the accused/appellant who had set the house of Khikhu Bai (PW-1) on fire. Lot of contradictions and omissions are there in the evidencerof the witnesses and this being the situation, accused/appellant is entitled for the benefit of doubt. 10. In view of above, the appeal is allowed. Impugned judgment is set aside. Appellant is acquitted of the charge levelled aginst him. . /. ’3_=_ Ii'i He be set free if not required in any other case. f Qr‘l Judge I I \