Chattisgarh High Court

Nemchand Agrawal And Ors vs State on 14 September, 2021

                                     1

                                                                   NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No. 2373 of 2000
                     Order reserved on : 20.07.2021
                     Order Delivered on: 14.09.2021


      1. Nem Chand Agrawal S/o. Radhakishan Agrawal, aged 25
         years,
      2. Subodhnath S/o. Chhamanidhinath, aged 23 years,
      3. Manoj Kumar Agrawal S/o. Ghansiram Agrawal, aged 22
         years,
      4. Satish Kumar Panigrahi S/o. Parikshit Panigrahi, aged 29
         years,
      5. Udhav Barik S/o. Mursabo Barik, aged 35 years,
      6. Bhagirathi Pradhan S/o. Ganeshram Pradhan, aged 25 years,
          All residents of Village- Sariya, District- Raigarh, MP (Now
          Chhattisgarh)
                                                         ---- Appellants
                                 Versus
         The State of Madhya Pradesh. (Now Chhattisgarh)
                                                          ---- Respondent

For Appellants                   :       Mr. B.D. Guru, Adv.
For State
[[
                                 :       Mr. Vikash Bhaskar, PL

                   Hon'ble Smt. Justice Rajani Dubey
                                CAV Order

     14.09.2021

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 14.09.2000 passed by the First Additional Session Judge, Raigarh, M.P. (Now Chhattisgarh) in Sessions Trial No. 121/98, whereby and whereunder, learned First Additional Sessions Judge has acquitted the appellants of the charge under Section 294 of the IPC and convicted and sentenced them as described below:-

               Conviction                           Sentences
     U/s. 147 of the IPC                 Fine of Rs. 500/- each, in default


                                       of payment of fine amount
                                       additional R.I. for 1 month.
U/s. 506 of the IPC                    Fine of Rs. 500/- each, in default
                                       of payment of fine amount
                                       additional R.I. for 1 month.
U/s. 436/149 of the IPC                R.I. for 3 years and fine of Rs.
                                       500/- each, in default of payment
                                       of fine amount Additional R.I. for
                                       1 month.

2. The prosecution case, as unfolded from the impugned

judgment and the records of the case is that, complainant Lochan

Prasad (PW-1) and the appellants are the resident of Village

Sariya. On 29.04.1998 at about 8.00 PM when the complainant,

after closing his tailoring shop, situated at the back side of his

house, was preparing food along with his son Hemant (PW-10), at

that time, they heard the sound of pelting stones at his shop and

also the noise of hurling abuses. When the complainant came

outside his house, he saw 50-60 persons standing outside his

house who were hurling abuses to the complainant. The present

appellants were also present there. Also, the house of the

complainant was set on fire by someone from the crowed. Looking

to the situation, the complainant along with his son ran away by

back side of his house. A written report in Ex. P-1 was given in the

police station, which was followed by registration of FIR in Ex. P-2.

After completion of investigation charge-sheet has been filed and

charges were framed against the appellants under Sections 147,

294, 506-B & 436/149 of the IPC.

3. So as to hold the accused/appellants guilty, the prosecution

has examined as many as 13 witnesses. Statement of the

accused/appellants were also recorded under Section 313 of the

Cr.P.C. in which they denied the charges leveled against them and

pleaded innocence and false implication in the case.

4. After hearing the parties, vide impugned judgment of

conviction and order of sentence dated 14.09.2000, learned First

Additional Session Judge acquitted the appellants of the charge

under Section 294 of the IPC and convicted and sentenced them

as mentioned above in para 1 of this order. Hence, the present

appeal filed by the appellants.

5. Assailing legality and validity of the impugned judgment of

conviction and order of sentence, learned counsel for the

appellant would argue that the conviction and sentence of the

appellants are bad, illegal and improper. He next contended that

the learned trial Court erred in holding the appellants guilty for the

arson while it has not been specified as to who had committed the

offence of arson. As many as 13 prosecution witnesses have been

examined before the trial Court and most of the witnesses have

turned hostile. He further submitted that the defence witnesses

Hulasram (DW-1), Shyam Sundar (DW-2) & Dr. Prem Bodalkar (DW-

3) have been examined and it is stated by them that there was an

old dispute between one Sesh Kumar Pradhan and the appellants,

due to which, Sesh Kumar Pradhan has falsely implicated the

appellants in the crime in question. As the appellants have been

convicted on the basis of suspicion, therefore, the impugned

judgment is liable to be set-aside.

6. On the other hand, learned counsel appearing on behalf of

State has supported the impugned order of the Court below

convicting the appellants under Sections 147, 506-B & 436/149 of

the IPC, being based on the material available on record, are just

and proper and do not call for any interference in this appeal.

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

records including the impugned judgment.

8. In the case in hand, the complainant Lochan Prasad Nayak

(PW-1) was examined before the trial Court and he stated in his

statement that when he came outside his house, about 50-60

persons were present there shouting to attack on them.

Thereafter, his child hid there and the complainant went to the

village Kandupali. He narrated that when he came back from the

village Kandupali, his house was totally burned. On being asked by

inspector, he replied that he has not seen the person as to who

has set his house on fire and the person who were present with

Shesh Kumar Pradhan told to be suspicious. Again he stated in

para 5 of his statement that:-

Þ50&60 vknfe;ksa esa vfHk;qDrx.k ogka ij Fks ;k ugha eSa mUgsa ugha igpku

ik;k FkkA iqfyl usa eq>ls iwNrkN dh FkhA eSusa fdlh dk uke iqfyl dks

ugha crk;k FkkA flQZ 'kadk tkfgj dh FkhAß

After perusing the statement of complainant Lochan Prasad

Nayak, it is not clear that the appellants/accused have set fire on

the house of the complainant. Prosecution declared this witness

hostile and cross-examined him but he denied all suggestions of

prosecution.

9. Fagulal (PW-2) and Manoj Kumar Sahu (PW-5) stated in their

evidence that they did not see as to who had set the house on fire

and, at the time of incident whether the accused were present

there or not. Statement of the son of the complainant Hemant

Kumar Nayak (PW-10), who was present at the time of incident,

was also recorded and he stated in his statement that there were

many persons who were pelting stones towards his house and

someone from the crowd set his house on fire but he had not seen

whether the appellants/accused were there or not.

10. As far as Ghanshyam Pradhan (PW-9) is concerned, he

stated in his statement against the accused/appellants mentioning

that:-

Þogka ij vfHk;qDrx.k Fks vkSj Hkh cgqr yksx Fks vfHk;qDrx.k LekVZ

Vsyj ds ?kj ds ikl tyk nks tyk nks dgdj fpYyk jgs FksA rFkk ekj nks

Hkh fpYyk jgs FksA vfHk;qDrx.k usepan us lqcks/k dks tykus ds fy;s

ykbVj fn;k Fkk lqcks/k us ykbVj ls ?kj esa vkx yxk fn;k FkkAß

But this statement is not mentioned in his 161 statement. He

further stated in para 2 of his statement that :-

ÞeSusa vius iqfyl dFku Mh&1 esa ;g crk;k Fkk fd vfHk;qDr

usepan us lacks/k dks ykbZVj fn;k Fkk vkSj lqcks/k us ykbZVj ls vkx yxk

fn;k Fkk vxj ;g ckr esjs iqfyl c;ku Mh&1 esa u fy[kh rks dkj.k eq>s

ekywe ughAß

11. Learned trial Court on the basis of evidence of Ghanshyam

Pradhan (PW-9) and I.O. Rashmikant Mishra (PW-13) convicted the

appellants. In para 12 of its judgment, learned trial Court finds

Ghanshyam Pradhan (PW-9), Ghasiya(PW-8), Manoj Kumar Sahu

(PW-5) & Mohan Patel (PW-4) hostile witnesses. After perusing the

evidence of aforesaid witnesses trial Court raised suspicion that

the accused person were present in the crowd and the offence

might be committed by them.

12. In Sujit Biswas v. State of Assami reported in AIR 2013 SC 3817, the Supreme Court has held that suspicion however

strong, cannot take place of proof. Para 6 is quoted below :

"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)".

But in this case complainant and other witnesses have not

supported the prosecution case. Ghanshyam Patel (PW-9) stated in

his statement that he has seen accused Subodh to set the house

on fire but this statement is not in his 161 statement.

13. The trial Court has convicted the appellants without

considering all facts in its proper prospective and that

informant/victim has not supported the prosecution case. All other

wittinesses have also not supported the prosecution case and

there is material omission in evidence of Ghanshyam Patel (PW-9).

The learned trial Court has proceeded on the basis of

assumptions, conjectures and surmises inasmuch as such

assumptions are not corroborated by any liable evidence.