Valla @ Valram vs The State Of Madhya Pradesh
2022 Latest Caselaw 4726 MP

                                        1                 Cr.A.No.1238/2017

         THE HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR

                          (DIVISION BENCH)

                    Criminal Appeal No.1238/2017

Balla alias Balram Singh                                    ..... Appellant
aged about 44 years
S/o Harnam Singh
Occupation - Labourer
R/o Village Muradpur, P.S.Dharanvada
District Guna

                                    Versus
State of M.P.                                        ..... Respondent
through P.S. Dharnavada,
District Guna
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CORAM

                     Hon. Mr. Justice Rohit Arya
                     Hon. Smt. Justice Sunita Yadav.

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Presence

       Shri Shailendra Singh Kushwaha, Advocate for the
appellant.
       Shri     Naval       Gupta,      Public      Prosecutor       for     the
respondent/State.



                             JUDGMENT

(DELIVERED ON THIS 04th DAY OF APRIL 2022)

This appeal, under Section 374 (2) Cr.P.C., arises out of the

judgment dated 26.11.2015 passed by Special Judge (under the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities

Act)) in Special Sessions Trial No.41/15, whereby appellant

stands convicted for the offence punishable under Section 3(2)(iv)

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short "the Act") and sentenced to

undergo imprisonment for life with fine of Rs.5000/-, in default to

suffer R.I. for three months.

2. Admittedly, appellant is Yadav by caste, while complainant

Pooran S/o Mannulal is an Aadivasi; member of scheduled tribe.

Prosecution story, as found proved, in short, is that on

20/3/2015, at about 7.35 PM, complainant lodged a report at

Police Outpost Jhagar, P.S.Dharnavada, District Guna stating that

at about 4 PM, he was not in his house having gone to Ruthiyai. At

5 PM, when he returned, he found that owing to fire-outbreak in

his Kuchha house, Rs.13,500/- in cash, caste certificate, Aadhar

Card, Ration Card, TV, Home theatre kept therein had been burnt.

He laid suspicion on the appellant. Upon the said information,

Aarson report (Ex.P/1) was registered. Initial enquiry was

conducted by Head Constable Rakesh Shivhare (PW6), who,

during enquiry, recorded the statements of complainant Pooran,

Lata Aadivasi, Natibai and Damodar Yadav. Loss Panchnama

(Ex.P/2) was prepared and enquiry report (Ex.P/8) was submitted

before the Station House Officer, on whose instructions, FIR

(Ex.P/9) was registered at Crime No.62/15 against the appellant

for the offences punishable under sections 436 of the IPC and 3(2)

(v) of the Act. The matter was investigated by Investigating

Officer Dy.S.P B.P.Tiwari (PW8), who prepared spot map

(Ex.P/3). The caste certificate (Ex.P/4) was produced by

complainant Pooran which was seized vide seizure memo

(Ex.P/5). The statements of complainant and witnesses were

recorded. The appellant was arrested vide arrest memo (Ex.P/7).

After completion of the investigation, charge-sheet against

the appellant was submitted before JMFC, Guna, who committed

the case to the Court of Special Judge (under the Act), Guna for

trial.

3. On being charged with the offence punishable under section

3(2)(iv) of the Act, in alternative under section 436 of the IPC, the

appellant abjured the guilt. In the examination under section 313

of the Code of Criminal Procedure, the appellant pleaded false

implication.

4. To establish the charges, the prosecution examined as many

as 8 witnesses, while no witness was examined in defence.

5. Learned counsel for the appellant has assailed the legality,

validity and propriety of the impugned judgment inter alia

contending that complainant Pooran (PW2), on his own showing,

was not present on the spot at the time of incident and had gone to

Ruthiyai. The conviction of the appellant is based upon testimony

of alleged eye-witnesses PW1 Nati Bai and PW3 Lata Bai. PW1

Nati Bai is mother of the complainant while PW3 Lata Bai is his

sister-in-law. In the wake of previous animosity between the

parites, learned trial Court has fallen in error having relied upon

the evidence of these interested witnesses. Even otherwise, as the

alleged arsoning has not resulted in destruction of the dwelling

house, at the most the appellant could have been convicted under

section 3(2)(iii) of the Act and not under section 3(2)(iv) of the

Act. As such the impugned judgment is liable to be interfered

with.

6. Per contra, learned Public Prosecutor has supported the

impugned judgment and submitted that the conviction of the

appellant has been recorded by the trial Court after proper

appreciation of the evidence on record and there is nothing on

record to discard the dying declaration of the deceased.

7. Having heard learned counsel for the parties, perused the

evidence brought on record.

8. PW1 Nati Bai is mother of the complainant. She has

deposed that 3-4 months back, at about 4 PM, she saw the

appelant near the house of complainant, abusing under

intoxication. Thereafter, he broke open the lock of complainant's

house and torched it, due to which clothes and Rs.13000/- in cash

kept therein got burnt. The fire was extingusihed by Damodar and

others. In the cross-examination, she denied that there was any

animosity between her family and the appellant. She further

deposed that at the time of incident, she was in Aanganwadi and

that she was called by her daughter-in-law Lata. She further

deposed that no incident occurred in her presence. As such, she

cannot be said to be the eye-witness of the incident.

9. Complainant Pooran (PW2) has deposed that on the date of

incident, he had gone to Ruthiyai. His mother had telephonically

informed him that appellant was abusing under intoxication and

that he had set the house on fire after breaking open the lock due

to which clothes, documents, TV, Hometheater and Rs.13500/- got

burnt. He has proved the report Ex.P/1. The police had found

damage to the tune of Rs.25,000/-, upon which loss memo

(Ex.P/2) was prepared. In the cross-examination, he admitted that

no incident occurred in his presence.

10. PW3 Lata Bai is sister-in-law of the complaiant. She has

deposed that around 2 months back, between 12 to 1 PM, while

she was asleep, appellant came and pushed the door of her room.

On her asking, he did not respond. However, she got up and saw

the appelant. Then she closed the door. Thereafter, she saw that the

appellant had broken-open the lock of complaiant's room and after

pouring kerosene oil set it on fire causing damage to the articles

and cash of Rs.13,000/- kept therein.Therafter, she along with the

neighbours extinguished the fire. She has proved the loss memo

(Ex.P/2). In paragarph 6, she has deposed that she had seen the

appellant running from the fire site. She and her sister-in-law Saroj

had come outside after hearing the commotion.

11. PW4 Damodar Yadav, who is nephew of the apellant, has

turned hostile. PW5 Pradeep Singh Solanki, Constable has proved

the caste certificate (Ex.P/4) of complaiant Pooran and

corresponding seizure memo (Ex.P/5). He has also proved arrest

memo (Ex.P/7 ) of the appellant dated 23/4/2015.

12. PW6 Rakesh Shivhare is the Head Constable who had

conducted enquiry upon arsoning report 2/15. He had recorded

the statements of Pooran, Lata, Natibai and Damodar on

25/3/2015. He has also proved loss memo (Ex.P/2), enquiry report

(Ex.P/8) and FIR (Ex.P/9) registered upon the instructions of

SHO.

13. PW7 Manoj Joshi, Reader posted in the Office of SDO,

Guna, has proved caste certificate (Ex.P/4) of the complaiant.

PW8 B.P.Tiwari, Dy.S.P. is the Investigating Officer. He has

proved spot map (Ex.P/3), caste certificate (Ex.P/4), arrest memo

(Ex.P/7) and criminal record of appellant (Ex.P/10) reflecting

criminal antecedents of eight cases. He has deposed that on

18/4/2015, he had recorded the statements of Natibai, Lataibai and

Damodar.

14. Thus, from the evidence available on record, it is amply

clear that belongings of the complainant, who is admittedly a

member of Scheduled Tribe, were put to fire, causing damage to

the tune of Rs.25,000/- as per loss memo (Ex.P/2). The evidence

of the prosecution witnesses viz. PW1 Nati Bai, PW2 Pooran and

PW3 Lata Bai is consistent as to the complicity of the appellant

and the same cannot be discarded merely for the reason that they

are relatives of the appellant. No evidence has been brought on

record by the appellant to prove the factum of previous animosity.

As such, the defence has not been able to prove inculpability of

the appellant.

15. Now, turning to the narration of incident, it has come in the

evidence of the aforesaid prosecution witnesses that appellant

broke-open the lock of the house of complaiant and set the

belongings on fire. The loss memo (Ex.P/2) depicts that clothes,

quilt, mattresses, documents including caste certificate, aadhar-

card, ration-card, TV, Home-theater and cash of Rs.13500/- got

burnt in the incident. However, it has not come either in the

deposition of witnesses or in the aforesaid loss memo, that

destruction of dwelling house was caused. The loss memo and the

charge-sheet suggest that damage to the tune of Rs.25,000/- only

was caused to the complaiant. It is noteworthy that dwelling house

in the instant case is said to be Kachha house, which could have

easily caught fire. However, such is not the case. Hence, the

learned trial Court was not justified in convicting the appellant for

the offence under section 3(2)(iv) of the Act. Instead, the appellant

ought to have been convicted under section 3(2)(iii) of the Act.

16. Now coming to the question of sentence, learned counsel for

the appellant submitted that appellant is in jail since the date of

arrest i.e. 23/4/2015. As such, he has suffered incarceration of

about seven years. Considering the facts and circumstances of the

case, ends of justice would be subserved if the custodial sentence

is reduced to the period already undergone and the fine amount is

enhanced to Rs.35,000/- (Rupees thirty five thousand only).

17. Accordingly, this appeal is allowed in part. The conviction

of the appellant under section 3(2)(iv) is altered to one under

section 3(2)(iii) of the Act and the custoidal sentence is reduced to

the period already undergone by the appellant. However, fine

amount is enhanced to Rs.35,000/- (Rupees thirty five thousand).

Appellant is in jail. On depositing the fine amount, appellant be

released forthwith, if not required in any other offence, failing

which he shall undergo the default sentence, as awarded by the

trial Court. The fine amount so deposited shall be given as

compensation to the complaiant. Needless to say that the fine

amount already deposited shall be adjusted against the enhanced

fine amount.

Copy of the judgment be sent to the trial Court along with

the record for compliance.

                       (ROHIT ARYA)                (SMT. SUNITA YADAV)
                         JUDGE                             JUDGE

(and)

        ANAND
        SHRIVASTAV
        A
        2022.04.07
        10:42:25
        +05'30'