,!ti[i;::iIi:>'!!i!'B']!BI'''!''» ..11-;%^ ,.y^ -V. ••s ^. 'li) '^•ss ,.',?-. li.sg^ ^ M{GH CCURT OF CHHATTISGARH, BJLASPUR RESPONDENT: Mohaniai, S/o Shreenaih Sharma. aged afcout 3S ysars, R/o Subhanganj, at present Vjlla.ge Kamrssd, P.S. ChamDa, Distt. BliasDur. Versus State of M.P., through P.S. Champa, Distt. SHaspur (M.P.) ("o".' C.G.) {Appeai unasr Section 374 (2$ ofthe Code ofCrimlnal Procedure. 19731- Present: - 'Vlr. J.A. Lohanl, counsel for the appetlant. ir. Pankaj Shrivastava, .awyer for ths State/respondent. Singie Bench: Hon'bie r. T.P. Sharma. J t<lt!i<ii;tSl3sfe^ (22-9-20Q8) 1. On a mention beins made bv Mr. J.A. Lohani, learned counse! for ths appeliant, that this appea! was in the eariier iist of flnai hearing cases and the appellant was directed to appear before the Registw on 22-9-2008, the matter is taksn up Tor hearing. With the consent of both ths parties, the matter is 2. This aDpeai is directed against the judgment of conviction & order of sentence dated 2151 Februaiy, 1991 passed by the Additionaj Sessions Judge, Sakti, Camp at janjgir, whereby learned Additionat Sessions Judge after holding the accused/appeSSant guiity fcr commlssion of offence of mischlef by fire under Section 435ofths I.P.C., sentenced himto undergo R.l.forfouryears. 3. The judgment is chalienged on the ground that without any reiiabie and crsdibie evidence. th®trial Court has convicted and sentenced the appeiiant In the aforssaid manner. 4. I have heard learned counsel for the parties and perused the impugned judgrnent as aiso the record ofthe tria! Court. 5. Cass of ths prosscution, in brlef, is thai in the intervening night of 1 & 2 September, 1986 at about 10 p.m. the accused was standing nearby the pan shop (Thela) of compiainant Tiharuram Yadav (PW-1) and set the said Thela on fire. Shivshankar Das Vishnav (FW-2) saw the incident and totd the same to Ra-ngopa! (PW-3) who in tum, narrated the mcident to the compiainant. KBuaSa . ; .^|_J -.- •'.•' '^^srs^'^ the flre and lodged the report on 2-9-19 at about 11.40 Sumt wooden pleces and ottier tiiings were recovered vide ece of cloffi was recovered vide Ex.P-3. The said Thela was on Supurdnama vide Ex.P-4. Spot map was prepared vide They extincsuished a.m. vide Ex.P-' Ex.P-2. One pls given to Tihar £.?„; 6. After recording the statements under Section 181 of the Cr.P.C. and after ccimpietion of investigation, chargs sheet was flled in the Court of Judicia! SViagistrate, First Class, Janjgir who In turn committed the case tp the Court of Sessions Judge, Biiaspur, ftom where learned Additional Sessions Judge, Sakti, Camp at Janjgii', recelved the case on transfer for triai. 7. Sn order to establish the guiit of She accused/appellant, the prosecution has examined as many as seven witnesses. Statement of the accuseti v/as recorded under SecSion 313 of the Ci-.P.C. in which he denied the cireumstances appearing a.gainst him and pieaded innocence & false impiication. The appeliant has specificaily stated in his statement ihat Ramgopat, Shivshankar & Tiharuram were friends, he is havina inimicai terms with Ramgopaf, therefore, he has been falsely implicated in the crime at the instance of Ramgopai. 8. Learned counsei for the appellant submits that the complainant has not seen the incident, the entire conviction is based on the single testimony of Shivshankar Das Vishnav (PW-2) who was having inimicai terms with the aDD'icant. The evidence of Shivshankar is fuii of omissions and contradictions and there is discrepancy in his evidence. Therefore, it is not safe to piace reliance on the evidence ofthis 9. On the respondent. 10. in order to establish the compiicity of She accused/appellant in the crime in question, ! have examined the material available on record. It is not disputed that on the date of incident the said pan Thela (a smali shop for keeplna property) has been burnt. As regards the complicity of the accused that whether he has burnt or set ths pan Thela on flre, Shivshankar Das Vishnav W-2) has stated in his evidence that on the fateful day he aiong with Hajarilat went to watch Video, at that time, they saw that the appetlant was lighting cigarette near the pan Thela of the compiainant and when they were going towards the Video, they saw that the appetlant threw the burning piece of cioth over the said pan Thela and ran away. He told the incldent to Ramgopal (PW- 3), they came along wlth other persons and extinguished the fire. II.Ramgopat (PW-3) has stated in his evfdence that h® was informed by Shivshankar that the appellant has burnt the pan Thela of comDiainant Ut»*aS'te. f? pan Theia on and he iodsed P-? l2.TJharuram Yadav ('PW-I) has specificallv stated i-n his evidence & Hajari that the accused has set stated that there was ioss of Rs.400-500/- vide Ex.P-1. The .oropeny was seized vk the pan Theia was given to him in Supurdnama vide Ex.P-4. 13. Entire case of the prosecution is based on the testimony of Shivshankar Das Vishnav (PW-2) who has admitted in his cross-examinatlon that when they were passing through the Video shop, they saw that the appeilant was lighting cigarette near the pan shop of the compiainant and after some time, the appeliant threw some burning materia) over the pan Thela and ran away. He has seen the accused from a distance of 15 steps. He has been cross- examlned by the defence at iensth. but the defence has not been able to elicit or bring anvthing from his testimony to discredit his evidence. On the other hand. he has described the incident in detail and he has immediately narrated the incident to Ramgopai (PW-3) who immediately rushed to the spot along with several persons and tried to extlnguish the fire. Tiharuram Yadav (PW-1) has also admitted in his evidence that he carne to know about the incident throug'n these persons and ultimately, they extlnguished the fire. Evidence of Shivshankar Das Vishnav (PW-25 inspires confldence and same is Srustvrorthy. teliance can safeiy be olaced on the evidence ofthis witness. l4.After appreciating the evidence available on record, the trial Court has convicted & sentenced the appeliant under Section 436 of the I.P.C. Conviction of the appeiiant is based on retiabie and ciinchinQ evidence. The triai Court has not committed any illegality or infirmity in convicting the appetiant under Sectjon 436 of the i.P.C. 15.As regards the question of sentence, the frial Court has sentenced the appeilant to undergo RJ. for four ysars. According to the F.1.R. there was a ioss of Rs.25-30/- as a resuit of mischief by fire caused by the appeiiant. The complainant has stated in his evidence that his propsrty vatuing Rs.400-500/- was burnt. The incident took olace on 1-9-1986. The appellant was In custody for at least 33 days and the al!eged pan Theia used for keeping the property was of smali size, but the accused/appeiiant has commltted mischieT by flre as a resutt of which property of She compiainant who is a vlllager was burnt. Taklng into consideration the ciroumstances in which the offsnce was committed and the value of the property v/hich was put to Soss by the accused a. by setting the pan Thela of the compiainant on fire, sentence awarded to the aooeliant 's littte bK excessive and it requ'res reconsideration. 16. Consequentiy, the appeat is partly aliowed. Conviction of ttie appellant under Section 436 of fte i.P.C. is maintained. howevar. sentence imposed upon him is reduced to R.l. for one year. The appeitant is on baii, he is directed to surrender immediately before the trias Court and serve oui the remaining sentence. ~—~^-— - 1 - ]sdAS,.7' l-P. SIiarnia Judge BtSt