owgw)” ' he am” APPEAL UNDER SECTION 374(2) OE‘ THE CODE G}? CRIF’EINAL PROCEDURE. 7\, \, v” “ (Against the Judgnent and findings of Shzi L.5.Nihiani, seSSionSxJudge, Bilaspur passed in Sessions Txial No’ 174-, of '1989 state Vs. Manu and another dec1de£ on 18th cay 1 ‘ IN THE HIGH CEy‘URT OF MAD‘EKA PRAEESH ATJAEALPUR. ‘crimlnal Appeal k0. ‘ 8?g of 1990. i x / K ‘ ‘ 26 yea rs; 56 §ea£5lxl Respondent ;.. The state bf Méa& hya Pra§esh: i ‘ ix \AQ a: iw @2‘5‘ B’Dth .the appell‘ants iare re’sicEen‘t oIf ¥ /"' village Pendri I‘alav, PDllca 3mtlon Lo'nhi, - Versus - mhsil mungen Eistrict ailaspuz/Mm. of July 1990). Conviction. ’ Sentence; ‘Under sectien lh’ gD mu s, Impri sonment _436 ¢‘£ 1pc. (r, : for one year with fine r v <3£ 125.4, 300/— t0 each Appell ant. g ,3, l I i, g HIGH COUR OF CHHATTISGARH, BILASPUR T Sinqle Bench: Manu & another Vs. JUDGMENT Post for Judgment:11/1 1/2009 *7 Sd/- Sunil Kumar Sinha Judge : The State of adhya Pradesh (Now Chhattisgarh) M Hon’ble Shri Sunil Kumar Sinha, J. Criminal Amal No. 889 of 1990 “ HIGH COURT OF CHHATTISGARH BILASPUR —_—*#*_ Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Crim‘inal Agpeal No. 889 of 1990 1. Manu son of Khelan aged about 26 years 2. Khelan son of Bahadur aged about 56 years. jAQQeIIant No.2 dead, name deleted as per order dated 9.1 1 .2009) Both the appellants residents of village Pendri Talav, Police Station Lormi, Tahsil Mungeli, District Bilaspur (M.P.) n (Now Chhattisgarh) Versus The State of Madhdy Pradesh (Now Chhattisgarh) (Criminal A_p£eal under Section 374 (2) of the Code of Criminal Procedure) Appearance: lMr. M.D. Dhote, Advocate forthe appellant. Mr. Sameer Behar, Panel Lawyer for the State. by (1) This appeal is directed against the judgment dated 18th of July, 1990 passed in Sessions Trial No. 174/89 by the Sessions Judge, Bilaspur, whereby, the accused persons were convicted u/s 436 IPC and sentenced o undergo R.l. for 1 year and to pay fine of Rs.300/- with t default sentences. A_/ l 1 > t l JUDGMENT (11.11.2009) 5 Following judgment of the Court was delivered Sunil Kumar Sinha, J. @1 Criminal Appeal No. 889 of 1990 x (2) Appellant No.2 Khelan died during the pendency of the appeal on 20.12.2003, therefore, his name has been deleted vide order dated 9.1 1 .2009. (3) The facts, briefly stated, are as under:- Accused No.1 Manu is son of accused No.2 Khelan (since died). The allegations were that on 5.4.89 at about 4.00 a.m. they committed mischief by putting the house of Dukhiram on me due to which small portion of the roof was burnt. This was witnessed by ‘th‘e two eye-witnesses’namely Milap (PW—2) and his wife Jhool Bai (PW—3). The case of the prosecution was that at the time of incident, Dukhiram and his wife were not in the house and it was locked. Dukh'iram had gone to Dindori for earning his livelihood and his wife was residing in her parents place. Dukhiram had instructed his father Kisun (PW-1) to look after the house who was residing in a separate house at some distance. After the incident Kisun (PW-1) was informed. He reported the matter to the police at about 11.15 a.m. on 5.4.89, on which, the First Information Report (Ex.-P/1) was recorded. (4) . On trial, Kisun (PW—1) turned hostile. He did not support the case of the prosecution. However, the learned Sessions Judge believing the testimonies of Milap (PW-2) and Jhool Bai (PW—3) convicted the accused 5 persons as aforementioned. ‘f- (5) Mr. MD. Dhote, learned counsel appearing on behalf of the appellant, argued that these two witnesses were chance witnesses. They were wholly unreliable as there were material contradictions in their ix e’Vidence. Their versions were vague and general. Their conduct also make them unreliable. \ \ (6) On the other hand, Mr. Sameer Behar, learned Panel Lawyer aparing on behalf of the tate, opposed these arguments and pe S suprted the judgment passed by the Sessions Judge. po G (7) I have heard the learned counsel for he parties at length and have t also perused the records of the sessions case. ( Milap (PW-2) deosed that “on the fateful night at about 12.00 ‘O’ 8) i p clock, he was going for picking mahua fruits. He saw that accused Khelan V ‘ and Manu put fire to the house of Dukhiram. When he asked them as to how ey are running after putting the house on fe, they did not reply th ir and ent inside their house. Thereafter many persons gathered there. w Half portion of verandah was burnt. Dukhiram and his wife were not in their house. The fire has caused damage of Rs.1,000/-“. In the cross examination, he was confronted with his police case diary statement (Ex.- D/1), in which, he has stated that it was the time of 4.00 am. in the moring, whereas in the Court evidence, he deposed that it was 12.00 ‘O’ n cloc in the mid-night. He was also confronted with the fact that in case k diary statement, he stated that Dukhiram and his wife were present in the house, whereas, in the Court evidence, he deposed that they had gone v‘ of out station and nobody was in their house. He could not offer any satisfactory explanation to these contradictions. (9) Jhool Bai (PW-3) deposed that ”at about 12-1.00 in the night, she was going for picking mahuairuits along with her husband (PW-2). She saw from a distance of 4O feet that the accused persons ran away after putting on fire the' house of Dukhiram. Her husband asked to them as to why they did so, but they did not reply and ran away. On hue and cry, Criminal Appeal No. 889 of 1990 4 many villagers gathered there. 4-5 kanderis (wooden logs of the house in roof) were burnt”. She admitted in the cross examination that there was n light at that place as there was no electricity in the village and they had se the appellants entering into their house. She further admitted that en she was not carrying any torch or chimney. (1) These two witnesses appear to be chance witnesses. ln the first 0 iance, they stated to the police that the incident took place at about 4.0‘am. which is a normal time at which the villagers use to go for piing of mahua fruits. Why they deposed in the Court that it was not ck 4.0 am. but it was 12 ‘O‘ clock in the mid-night, no reasons have been 0 asigned by them. Goin or picking mahua fruits at about 12 in the mid- s g f night appears to be unnatural. Not only this, the evidence of these witesses is vague. They have not deposed that in what manner the n accused persons put the house on fire. What instrument was used by them for putting fire to the house in question ? If the incident took place at about 12 in the mid-night and there were no lights in the ville and the witesses were also not carrying lights with them,then it was not possible n for the to see from a distance of 40 feet that who caused fire to the m 5 house. it appears that in the light of fire, they only saw the accused persons entering into their house and by that they claimed that the accused persons were perpetrators of crime. (11) The testimonies of the chance witnesses, although not necessarily ”false. are proverbially unsafe. The versions of these witnesses are not corroborated by the evidence of Kisun (PW-1), who is the father of the victim and who lodged the F.l.R. (Ex.-P/1) as he completely turned ‘0 Criminal Appeal No. 889 of 1990 o nst 0 ag 6? Criminal Agpeal No. 889 of 1990 hostile. He deposed that he did not mention the names of the person in the F.I.R. who put the house on fire. He further deposed that he did not lodge the report as Ex.-P/1. Even in the cross examination of PW—1 by 6 Public Prosecutor nothing material could be brought on record to support the case of prosecution. (12) ln the facts and circumstances of the case, after considering the entire evidence available on record, l am unable to sustain the conviction of the‘a‘ccused persons. ln ’my considered view, the learned Sessions Judge erred in law in holding the testimonies of the two eye-witnesses fully reliable. As nstated above their testimonies suffer from many discrepancies and it was unsafe to rest conviction of such testimonies of the said two witnesses in absence of corroboration from any other proved evidence on record. (13) For the foregoing reasons, the appeal is allowed. The impugned judgment passed by the learned Sessions Judge is set-aside. The accused persons are acquitted of the charges:amedT/ag’ain/s’tthem. Sdl- Sunil Kumar Sinha - Judge ' vatti