Chattisgarh High Court
Chotelal Patel vs State Of Chhattisgarh on 17 January, 2025
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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 : Mr. Basant Dewangan, Advocate.
For Respondent : 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.
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2. 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
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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. 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
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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.
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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.
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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.
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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
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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.
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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 Digitally signed
by AMIT KUMAR
KUMAR DUBEY
Date: 2025.01.20
DUBEY 10:53:35 +0530
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