Dhani Ram Sahu And Ors vs The State Of M.P
2021 Latest Caselaw 2306 Chatt

                                1

                                                            AFR
      HIGH COURT OF CHHATTISGARH, BILASPUR

            Judgment Reserved on : 13/08/2021
         Judgment Pronounced on : 14/09/2021

                   CRA No. 1977 of 2000
   Dhani Ram Sahu S/o Chinta Ram Sahu, aged about 42
    years, R/o village Pavni, P.S. Bilaigarh, District Raipur
    (C.G.)
                                                 ---- Appellant
                            Versus
   State of Chhattisgarh Through : Police Station Bilaigarh,
    District Raipur (C.G.)
                                               ---- Respondent

For Appellant : Dr. N.K. Shukla, Sr. Advocate with Ms. Abhyunnati Singh, Advocate For Respondent/State : Mr. Anurag Verma, P.L.

Hon'ble Smt. Justice Rajani Dubey

C A V ORDER 14/09/2021

This appeal arises out of the judgment of conviction and

order of sentence dated 18.07.2000 passed by the II

Additional Sessions Judge, Baloda Bazar, District Raipur, in S.T.

No.39/93 while acquitting the accused/appellant under Section

506-B IPC, convicted under Section 436 IPC & sentenced him

to undergo R.I. for three years with fine of Rs.5,000/-, in

default of payment of fine amount to further undergo S.I. for

one year.

02. Case of the prosecution is that on 20.11.1992 at 6.30

am, a dehati nalishi (Ex.P/3) was recorded at the instance of

complainant Dhansai (PW/3) wherein he alleged that

accused/appellant along with Puniram Sahu and Chhedu Ram

Sahu set his house as well as sawmill on fire on account of

family property dispute and also threatened him to kill. On the

basis of aforesaid allegation, offence under Section 436 and

506-B/34 of IPC was registered. Based on this dehati nalishi,

FIR (Ex.P-13-A) was registered on the same day at about 12.45

pm under the aforesaid sections against the present appellant

and other accused persons namely Puniram Sahu and Chhedu

Ram Sahu. Semi-burnt teak wood, coal ash, two doors, semi-

burnt window total amounting to Rs.23,000/-, and other

articles of sawmill were seized vide Ex.P/1. Spot map was

prepared vide Ex.P/6. Khasra Panchshala (P.-II) was seized

vide Ex.P/7. One bamboo stick and axe (tangia) were seized

at the instance of appellant Dhani Ram. Axe (tangia) was

seized at the instance of accused Puniram Ram vide Ex.P/12.

Nazri Naksha was prepared vide Ex.P/13. Photo copy of

register of sawmill of complainant Dhansai (PW/3) was seized

vide Ex.P/14.

03. After investigation, charge sheet was filed against the

appellant and other accused persons under Sections 436 and

506-B/34 IPC and charges under Sections 436 and 506-B were

framed against him (appellant), whereas charge under Section

436 IPC was framed against other accused persons by the trial

Court.

04. So as to hold the accused/appellant guilty, the

prosecution examined as many as 12 witnesses. Three

defence witnesses were also examined to substantiate its

case and produced documents Ex.D-1 to D-3. Statements of

the appellant and other accused persons were also recorded

under Section 313 of Cr.P.C. in which they denied the

circumstances appearing against them in the prosecution

case, pleaded innocence and false implication.

05. The trial Court after hearing counsel for the respective

parties and considering the material available on record while

acquitting the appellant from Section 506-B IPC and another

accused Chhediram from Section 436, convicted and

sentenced the appellant as mentioned in para-1 of this

judgment. Hence, this appeal.

06. Learned Sr. Advocate for the appellant submits that the

appellant and complainant Dhansai (PW/3) are the brothers. A

civil dispute is pending between them regarding ancestral

property and to evict the present appellant from the ancestral

property he has been falsely roped in the case. He further

submits that the prosecution was launched for making pressure

on the appellant to surrender before the complainant Dhansai

(PW/3) in partition suit which was filed by the complainant. He

also submits that the learned trial Court utterly failed to prove

the fact that the premises which alleged to have been set on

fire was not only in possession of the complainant but also in

the possession of the appellant as is evident from the evidence

of Raj Kumar (PW/10), son of complainant Dhan Sai. It is also

submitted that the learned trial Court convicted the appellant

because he was Minister and influential person who could have

managed for withdrawal of the case, but the fact is that he left

the politics way back in the year 1980 and never contested

election since then. It is also contended that in this case, most

of the prosecution witnesses including the complainant himself

turned hostile and have not supported the case of the

prosecution and this fact was completely ignored by the trial

Court while convicting the appellant. It is next submitted that

the Court below committed error by ignoring the fact that the

First Information Report under Section 154 Cr.P.C. has not been

filed before the Court. The evidence of prosecution witnesses

suffers from contradictions and omissions. No legal and

incriminating evidence has been led by the prosecution against

the appellant to bring home his guilt, therefore, the impugned

judgment of conviction and order of sentence may be set aside.

07. On the other hand, supporting the impugned judgment it

has been argued by the State counsel that the conviction of the

accused/appellants is strictly in accordance with law and no

interference is called for.

08. I have heard learned counsel for the parties and perused

the material available on record.

09. Chheduram (PW/1) is the Kotwar of village. He is the

witness to whom complainant Dhan Sai (PW/3) informed the

incident. This witness has not supported the prosecution case

and turned hostile. In cross-examination, he denied suggestions

of the prosecution.

10. Kheek Ram (PW/2), Radhe Shyam (PW/5), Dwarika Prasad

(PW/6), Ram Lal (PW/7) and Bihari (PW/8) have not supported

the case of the prosecution and turned hostile.

11. Complainant Dhan Sai (PW/3) has stated that appellant is

his real brother. The partition of their ancestral property was

taken place in the year 1980-81. On 20.11.1992, his house was

set on fire in which 245 pieces of chiran wood burnt. He has

also stated that in the house, appellant Dhani Ram and co-

accused Puniram were also residing. He has further stated that

he did not see the appellant and co-accused persons setting his

house on fire. It is Laxman who informed him about the

incident. This witness has also stated that Laxman came to

him and informed that the appellant and co-accused are

preparing to set the house on fire but at the relevant time he

did not go there. After 2-3 hours he went to see the fire. This

witness has also stated that he did not go to the spot

immediately because he was under impression that Laxman

might be joking. After the incident, FIR of incident was lodged

by him vide Ex.P/3. This witness has also been declared hostile.

This witness, in para 13 and 14 of cross-examination, has

admitted that a civil dispute of alleged house is pending in the

same Court which was filed by appellant Dhani Ram. Further

admission of this witness is that appellant Dhani Ram and co-

accused Puni Ram had called some goondas and report of

which was lodged by him on 13.11.1992. Further, in para 25,

this witness stated that the alleged house is made of cement

and is well constructed and there is cemented wall having door

between partition of appellant's house. In para 26, it has been

stated that after the incident appellant Dhani Ram left the

house. This witness himself admitted that co-accused Puni

Ram and Chhedu Ram have been kept as caretaker by the

appellant Dhani Ram.

12. Hari Ram Patel (PW/4) is the Patwari who prepared spot

map vide Ex.P/6.

13. Laxman (PW/9) is the witness who first informed

complainant Dhan Sai (PW/3) about setting his house of fire. He

is brother-in-law (lk<w) of Dhan Sai. This witness has stated that

he was sleeping in the terrace where the incident took place.

He woke up when he heard the noise "आग लग गई] आग लग गई" and

saw that co-accused Puniram had matchbox as also rubber belt.

This witness has also stated that the house of Dhan Sai (PW/3)

was set on fire with the help of rubber belt by co-accused

Puniram. At the relevant time, appellant Dhani Ram was also

present there who was holding rubber belt in his hand.

14. Raj Kumar (PW/10) is the son of complainant Dhan Sai

(PW/3). This witness has stated that the partition had taken

place prior to 15 years of the incident. Appellant Dhani Ram

and Anand Ram reside in one share & complainant Dhan Sai

and Mani Ram reside in another share. At this stage, this

witnessed has been declared hostile. In para 4 of his cross-

examination, this witness has stated that at 6.00 am appellant

Dhani Ram and co-accused Puni Ram were standing before

their house and he (PW/10) was standing before his house.

Both were raising allegation against each other that you have

set the house on fire. Further, in para 7, he has stated that it is

true that appellant Dhani Ram did not leave the house. He

himself stated that the appellant left the house much later. He

has also stated that they wanted appellant Dhani Ram to leave

the house under any circumstances.

15. Sardar Singh (PW/11) - Investigating Officer, has duly

supported the prosecution case.

16. A.R. Yadav (DW/1) has stated that report of alleged fire

(Ex.D-1) was given to him by the appellant. A.K. Sakhriya

(DW/2) has stated that on the report of appellant Dhani Ram,

offence under Section 448/34 IPC was registered. Tulsi Ram

(DW/3) is uncle of the appellant. He has categorically stated

that appellant Dhani Ram was in possession of the partitioned

part where the fire broke out.

17. It is relevant to note here that defence of the appellant is

that the alleged house where the fire broke out was in

possession of the appellant, therefore, question of setting

ablaze his own house does not arise. Evidence of the

prosecution witnesses as also defence witnesses makes it clear

that the alleged house where the fire broke out is the family

property of the complainant and appellant & a civil dispute is

also pending in the same Court. It is general principle of

criminal justice system that the prosecution has to prove its

case beyond all reasonable doubts and defence has to show

only probability of their defence. In this case, the prosecution

witnesses supported the defence of appellant.

18. Close scrutiny of the evidence makes it clear that

complainant Dhan Sai (PW/3), appellant Dhani Ram & co-

accused Puniram were habitants of the alleged house where fire

broke out. Complainant Dhan Sai (PW/3) and his son Raj Kumar

(PW/10) have admitted that after the incident appellant Dhani

Ram left the house. The question as to who set the house on

fire is concerned, this Court finds from the evidence of Laxman

(PW/9), who is the chance witness, that co-accused Puniram set

the house on fire, but then this Court turn to evidence of

complainant Dhan Sai (PW/3), who in para 17 of his cross-

examination, admitted that the incident of fire was first seen by

Ramtalhin and neighbour Khajurhin and on their noise being

made, we (PW/3 and his family members) came to know that

the fire broke out, but most surprisingly the prosecution did not

examine these witnesses (Ramtalhin and Khajurhin) to prove its

case and their name do not find place in the list of witnesses. I

am not in a position to understand as to why these witnesses

were not examined, who have figured in this case. Statement of

Laxman (PW/9) would show that he heard the noise that the

'fire broke out' when he was in sleep and about 50 persons

were also shouting that 'fire broke out'. The evidence of

Laxman (PW/9) also reveals that Ramtalhin and Khajurhin were

also shouting that get-up get-up, a fire broke out (mBks&mBks vkx yx

xbZ). The family members of appellant Dhani Ram were also

shouting. Laxman (PW/9) himself has admitted of disclosing the

incident for the first time before the Court. There are material

contradictions in the statements of prosecution witnesses.

19. Hon'ble the Supreme Court in the matter of

Shanthamalleshappa V. State of Karnataka reported in

AIR Online 2018 SC 888, has held that 'the incident occurred

at about 9.30 p.m. on the fateful day. Unless sufficient light

was there it was not possible to identify the accused. It was not

the case of the prosecution that witness had seen the accused

persons in the light emanated from fire. Even according to the

case of the prosecution there were civil disputes pending

between the brothers in respect of family properties and also it

is evident from the evidence on record that 2-3 days prior to

the date of incident both the brothers have lodged complaints

against each other, basing on which crimes were registered

being Crime Nos.36 of 2009 and 37 of 2009 on 20.02.2009 for

the offences punishable under Sections 323, 324, 341, 504, 506

read with 34 IPC. In view of such disputes and complaints

registered against each other, there is a possibility of

implicating accused by making a false complaint. Further, it has

been held that statements of prosecution witnesses to that of

who was residing in alleged place are contradictory and, thus,

held that conviction was improper.

20. In the matter of Palanisamy and others V. State of

Tamil Nadu reported in AIR 1986 SC 593, it has been held by

Hon'ble the Supreme Court that - in case of Sections 300 and

436 of IPC, evidence of prosecution witnesses are not free from

reasonable doubt. The retraced confession by accused found to

be tainted and not supported by the independent corroboration,

and thus, acquitted the accused person extending benefit of

doubt.

21. In Uday Pratap Singh V. State of Chhattisgarh,

reported in 2016 CRI. L.J. 2840, this High Court held that two

witnesses (PW/2 and PW/3) who allegedly witnessed the said

incident kept quiet for almost 25 days and not made any

disclosure of incident. Further, one of witnesses (PW/2)

admitted that his affidavit before notary was got prepared at

instance of complainant and his brother and that had he not

given the affidavit, he would not have stated against the

accused/appellant in the Court. It has been further held that

witness and accused were not having cordial relationship and

witness used to act as was asked by complainant, therefore,

possibility of false story being cooked up by witnesses after 25

days, cannot be ruled out, and thus, acquitted the accused

extending him benefit of doubt.

22. In the case in hand, it is evident from the prosecution

witnesses that both the complainant and appellants were the

habitants of the alleged property and a civil dispute of the

same was pending between them. Both the parties were in

possession of the alleged property where the fire broke out.

The prosecution has failed to established the fact that the

property where the fire broke out was in exclusively in

possession of the complainant (PW/3). None of the witnesses

have categorically stated against the appellant that it is he who

set the house on fire. That apart, appellant Dhani Ram, after

the incident, left the house, which is evident from the

statements of PW/3 and PW/10, thus, possibility of false story

being cooked up by the complainant cannot be ruled out.

23. In view of the aforesaid factual position seen in the light of

the evidence of the witnesses on record and in view of

decisions of Hon'ble Supreme Court in the matter of

Shanthamalleshappa (supra), Palanisamy (supra) and

decision of this Court in the matter of Uday (supra), this Court

does not find the conclusion drawn by the Court below to be

based on proper appreciation of the evidence of the witnesses.

Prosecution has utterly failed to establish its case beyond all

reasonable doubt and, therefore, the benefit has to go to the

accused/appellant. Judgment impugned is thus hereby set

aside and the accused/appellant is acquitted of the charges

levelled against him. Accused/appellant is on bail, his bail

bonds shall stand discharged.

Sd/-

(Rajani Dubey) JUDGE

PKD