Raigarh, Chhattisgarh v. State Of Chhattisgarh Through Station House Officer, Kharsia, Dis
Case Details
1 2025:CGHC:2972 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1528 of 2024 Judgement Reserved on 10.01.2025 Judgement Delivered on 17.01.2025 Chotelal Patel S/o Baandiram Patel Aged About 43 Years R/o Village Mauhapali P.S. And Tahsil- Kharsia, District- Raigarh, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, Kharsia, District- Raigarh, Chhattisgarh. ... Respondent For Appellant For Respondent : : Mr. Basant Dewangan, Advocate. Ms. Sunita Manikpuri, Dy. Govt. Advocate. Hon’ble Mr. Justice Naresh Kumar Chandravanshi C.A.V. Judgment 1. This criminal appeal filed by the appellant-accused under Section 415 of Bhartiya Nagrik Suraksha Sanhita, 2023 (henceforth, “BNSS, 2023”) is directed against the judgment of conviction and order of sentence dated 06th August, 2024 passed by 2nd Additional Sessions Judge, Raigarh (C.G.) in Sessions Trial No. 46 / 2023 convicting the appellant /accused for commission of offence under Section 436 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 10 years and pay fine of Rs. 2,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for three months. 2 2.
Legal Reasoning
The impugned judgment has been challenged on the ground that without there being any cogent and reliable evidence against the appellant/accused, the trial Court has convicted him, as such, it has committed an illegality in convicting and sentencing him, as mentioned above. 3. Case of the prosecution, in brief, is that at the time of incident complainant Teejram Khadiya (PW-1) was residing at village Bamhanpali, but he was doing labour work at village Banipathar. On 08.03.2023, at about 10 AM when he was at his work place i.e. village Banipathar, then Sukhram Chauhan (PW-3), who is resident of village Bamhanpali, informed him over mobile phone that Chhotelal Patel (appellant/accused) has set his house on fire and run away from the spot. On receiving such information, complainant alongwith his wife Yashoda Khadiya (PW-4), brother Lalit Khadiya (PW-8) and son Lakhand Khadia came at village Bamhanpali and saw that his house was burning with fire. Village Sarpanch Dayaram Rathia was extinguishing the fire by calling the fire brigade. Due to such fire, his house, its roof made with asbestos sheet, wood, 03 sacks of rice, a bicycle, clothes and other household articles were burnt in the fire. Complainant lodged First Information Report on the same day i.e. 08.03.2023 at about 4.10 PM naming the appellant/accused alleging that he burnt his house, which was seen by Mansharam Yadav (PW-5), who is said to be the eye-witness to the incident. FIR (Ex.P-1) was lodged. During course of investigation, police prepared spot map (Ex.P-2), Damage panchnama (Ex.P-3). The police also seized ash of straw of paddy (iSjk) and other articles vide Ex.P-4. Patwari also prepared spot map (Ex.P-5). Memorandum statement of appellant / accused was recorded 3 vide Ex.P-7. Statement of the witnesses were recorded. The appellant was arrested on 15.04.2023 vide arrest memo (Ex.P-13). 4. After investigation, charge-sheet under Section 436 of the IPC was filed by the police before Judicial Magistrate First Class, Kharsia, District Raigarh, who, in turn, committed the case to the Sessions Judge, thereafter, the case was transferred to Second Upper Sessions Judge, Raigarh, who tried the case. 5. Second Upper Sessions Judge, Raigarh framed charge under Section 436 of the IPC and the same was read over and explained to the appellant, which he denied and pleaded not guilty. 6. In order to establish the charge against the appellant, the prosecution examined as many as 10 witnesses and exhibited 14 documents. Statement to the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. The appellant has not examined any witness in support of his defence. 7. After affording due opportunity of hearing to the parties, the learned trial Court has convicted the accused /appellant and sentenced him, as has been mentioned in opening paragraph of the judgment. Being aggrieved and dissatisfied with the judgment, instant criminal appeal has been preferred by the appellant questioning the same. 8.
Legal Reasoning
Contention of learned counsel appearing for the appellant is that the appellant has been convicted only on the basis of statement of alleged eye-witness Mansharam Yadav (PW-5), but his statement is not supported by other independent prosecution witnesses that he saw the appellant 4 setting fire to the house of complainant. It is further contended that said eye-witness Mansharam Yadav (PW-5) has deposed that he was grazing his goats nearby the house of complainant, at that time, he saw the appellant setting fire on the straw of paddy kept near the house of complainant and running away from there, but neither he has stated aforesaid facts to Sukhram Chouhan (PW-3) nor to PW-6 Dayaram Rathi (Sarpanch of the said village), who went immediately on the spot. Even on the spot map (Ex.P-2) prepared by police or spot map(Ex.P-5) prepared by Patwari, it has not been mentioned that where Mansharam Yadav (PW-5) was grazing his goats. It is contended further that he {Mansharam Yadav (PW-5)} is well wisher of complainant, therefore, merely on the basis of blunt statement, his deposition cannot be relied upon. It is next contented that about a month prior to the incident, dispute erupted between complainant and the appellant on account of grazing goats of complainant, therefore, wife of the appellant namely Santoshi Patel had lodged FIR against the complainant and his wife, as such, they have falsely implicated the appellant in the instant case. It is submitted that the police has not seized any burnt articles except ‘ash’ from the spot, whereas, as per case of the prosecution, alleged house, which seems to be only one room house, was made by wood and bamboo having roof of asbestos sheet, but none of such burnt articles have been seized by the police except ‘ash’. These facts also go against the truthfulness of case of prosecution, but learned trial Court without considering aforesaid facts and evidence, has convicted the appellant for the aforesaid offence only on the basis of unreliable and unlawful evidence, hence, it is prayed that appeal may be allowed and the appellant may be acquitted of the said charge by setting aside the impugned judgment of the trial Court. 5 9. On the other hand, learned counsel for the State submits that Mansharam Yadav (PW-5) is the eye-witness to the incident, who has seen the appellant setting fire to the house of complainant, which is also supported by other independent prosecution witnesses. The impugned judgment is based on due appreciation of evidence, which does not call for any interference in the instant appeal, therefore, the instant appeal is liable to be dismissed. 10. I have heard learned counsel appearing for the parties and perused the record of trial Court with utmost circumspection. 11. Complainant Teejram Khadiya (PW-1) has stated in his court statement that date of incident was “Holi festival” day of the year 2023 and when he had gone to work at village Banipathar, then Sukhram Chouhan (PW-3) had informed him over mobile phone that appellant has set his house on fire and run away, thereafter, he (complainant), his wife Yashoda Khadiya, brother Lalit Khadia and son Lakhan Khadia went to his village and saw that his house was burning with fire and fire brigade was called upon. He has further deposed that Manshram Yadav, who is resident of his village, had told that he has seen the appellant setting fire to his house, thereafter, he lodged FIR (Ex.P-1). Aforesaid facts have also been supported by his wife Yashoda Khadia (PW-4). 12. Lalit Khadia (PW-8), who is brother of complainant, has also supported the statement of complainant to the extent that, after receiving information, he alongwith his brother had gone to Bamhanpali, till then house of his brother had burnt. He has not supported other statement of complainant. 6 13. Sukhram Chouhan (PW-3) has supported the deposition of the complainant to the extent that he had informed the complainant on mobile phone that ‘his house has caught fire’, then complainant came there. He has not supported the statement of complainant Teejram Khadia (PW-1) and his wife Yashoda Khadia (PW-4) that he (Sukhram Chauhan) had told them that appellant has set fire on their house. Thus, there is material omission in the deposition of aforesaid witnesses that ‘whether Sukhram Chohand (PW-3) has informed them about setting fire by appellant in their house or not’. 14. Mansharam Yadav (PW-5), who is said to be sole eye-witness to the incident’ has deposed in his deposition that on the date of incident at about 10 AM when he was grazing his goats, at that time, appellant was also going alongwith his goats, at that time, appellant went near the house of complainant and set fire on paddy straw and run away from there, which he had seen. He has further deposed that looking to the aforesaid facts, he had told his wife Triveni to inform the villagers that house of the complainant has caught fire and to extinguish it, thereafter, BDC and Sarpanch called the Fire Brigade and asked them to extinguish the fire. But, this witness has admitted in paragraph 6 of his cross-examination that he had not gone near the house of complainant to graze the goat on the date of incident. Sukhram (PW-3) and Dayaram Rathia (PW-6) had went to the house of complainant, when it was burning, but they have not stated in their deposition that Manshraram Yadav (PW-5) had told them, that, he has seen the appellant setting fire on the paddy straw kept near the house of complainant or setting fire on his house. 7 15. As per admission of complainant and his wife, they have good relation with Mansharam Yadav (PW-5) and it is found that he {Mansharam Yadav (PW-5)} had not told about the incident to other villagers like Sukhram Chouhan (PW-3) and Dayaram Rathia (PW-6) when they had reached to the place of incident that he has seen the appellant setting fire to the house of complainant. His whereabouts (position) has also not been mentioned by police and patwari in the Spot Map (Ex.P-2) & (Ex.P-5), respectively prepared by them and he (eye-witness) himself has admitted in his cross-examination that on the date of incident, he had not gone near the house of complainant to graze his goats. 16. Having considered the aforesaid facts and further considering the fact that prosecution has not examined Triveni {wife of Mansharam Yadav (PW-5) }, therefore, only on the basis of blunt and uncorroborated statement of Mansharam Yadav (PW-5) that he had seen the appellant setting fire to the house of complainant, is not found to be reliable for conviction of the appellant. 17. As per admission made by complainant Teejram Khadia (PW-1) and his wife Yashoda Khadia (PW-4) in their cross-examination, about one month prior to present incident, dispute had occurred between them and the appellant, therefore, the wife of the appellant namely Santoshi Patel had lodged FIR bearing Crime No. 60 / 2023 against the complainant and his wife for the offence under sections 294, 323, 506 read with Section 34 of the IPC, to which Criminal Case No. 131 / 2023 was instituted against them, thus, there is enmity between both the parties and said eye-witness Mansharam Yadav (PW-5) appears to be a well-wisher of the complainant. On this count also, on the basis of uncorroborated statement of 8 Mansharam Yadav (PW-5), the appellant / accused cannot be convicted for the said offence beyond reasonable doubt. 18. It is a case of prosecution that appellant set fire to the house of complainant, but neither it is clear from the charge-sheet nor from the deposition of prosecution witnesses that what was the size of house of complainant and how many rooms were there. 19. As per the Damage Panchnama (Ex. P-3) prepared by Head Constable (PW-10), who is investigating officer of the case, on account of said arson, 16 pieces of 8 feet asbestos sheets, bamboo poles on which burnt plastic sheet (Tripal) were stuck, four piece of Miyar of saja Wood, two trolley paddy straw worth Rs.20,000/- were damaged. But vide Seizure memo (Ex.P-4) ash of only burnt paddy straw and other articles have been seized. Other burnt articles like asbestos sheet, wooden article and bamboo poles, etc. has not been seized. This facts show that poor investigation was done by the prosecution, as it has not specifically been mentioned in charge-sheet that what was the size of said house of complainant and how many rooms were there, further, alleged burnt articles ought to have seized, it is not found from the record that said arson was as big that asbestos sheets and wooden articles were completly burnt. 20. As per Section 27 of the Evidence Act, memorandum statement of accused is relevant to the extent only by which incriminating articles to the offence is seized, but in the instant case, no such incriminating articles have been seized. Despite that Investigating Officer (PW-10) has recorded memorandum statement (Ex.P-7) of the accused but the same is not helpful to the prosecution in the fact situation of the instant case. 9 21. In view of the foregoing discussion, it is found that case of the prosecution is totally based on the deposition of said eye-witness Mansharam Yadav (PW-5), but the same is not found to be reliable, as his statement is not only blunt but uncorroborated also. Other prosecution witnesses are hearsay witnesses. Despite that, learned trial Court without appreciating the evidence in accordance with law, has convicted and sentence the appellant, which is not found to be sustainable. 22. Accordingly, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 6th August, 2024 is set aside. The appellant stands acquitted of the offence under Section 436 of the IPC. The appellant is reported to be in jail since 06.08.2024. He be released forthwith, if not required in any other case. 23. Keeping in view of the provisions contained in Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023, the appellant is directed to furnish a personal bond for a sum of Rs.10,000/- with one surety in the like amount before the concerned trial Court, which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 24. The trial Court record alongwith the copy of this judgment be sent back immediately to the concerned trial Court for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.20 10:53:35 +0530 10 11