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2003 DIGILAW 771 (MP)

MOORAT SINGH v. STATE OF M. P.

2003-06-24

SHANTANU KEMKAR

body2003
JUDGMENT : This appeal is directed by the appellant against the judgment of the Additional Sessions Judge, Khurai dated April 21, 1990 in Trial No. 9/90 whereby Moorat Singh (accused) has been convicted for offence under section 436 of the Indian Penal Code and sentenced for one year R.I. and fine of Rs. 1000/-, in default to further R.I. for three months. 2. Briefly narrated the prosecution story is : Appellant set fire to the cattle house of Govindsingh resulting in burn of half of the house, cow dung and wood. Govind Singh (PW2) sustained loss to the tune of Rs. 1500/-. 3. After investigation by the Police the offence was registered and charge sheet was filed. 4. The appellant abjured the guilt and his defence was that a day prior to the date of incident complainant Govind Singh (PW2) set fire to his (appellant's) grass of which appellant' son filed a report at Police Station, Bandri and therefore, in defence and to falsely implicate the appellant, the complainant Govind Singh himself set fire to his own cattle house and lodged a false report. 5. Before the trial Court, to prove the case, the prosecution examined Sitaram (PW1), Govind Singh (PW2), Sobharani (PW3), Baghwandas Pujari (PW4), M. A. Qureshi (PW5). In defence the appellant examined Banshilal (DW1). Out of these witnesses examined by the prosecution Sitaram (PW1), turned hostile. The trial Court on the basis of eye-witness account of Govind Singh (PW2) and Sobharani (PW3) corroborated by the statement of Bhagwandas (PW 4) held that the appellant set fire to the cattle house of Govind Singh; and convicted the appellant. Govind Singh (PW2), in his statement has categorically stated that at about 5 P.M. when he reached his house he saw the appellant setting fire to his cattle house and on seeing him, appellant ran away. On his shouting the villagers gathered and extinguished the fire, to them he informed that the appellant set fire and ran away. He thereafter, lodged a police report in the night when police reached to the village on regular round. The trial Court disbelieved the defence evidence of the appellant that complainant Govind Singh himself set fire on his house and has falsely implicated the appellant in order to defend himself in the complaint lodged by the appellant against the complainant a day prior to the date of incident. The trial Court disbelieved the defence evidence of the appellant that complainant Govind Singh himself set fire on his house and has falsely implicated the appellant in order to defend himself in the complaint lodged by the appellant against the complainant a day prior to the date of incident. The trial Court has found this defence to be untrustworthy and on the basis of appreciation of evidence the trial Court found the prosecution witnesses reliable, natural and truthful and as such convicted the appellant as mentioned above. 6. Heard Shri R. K. Samaiya, learned counsel for the appellant and Shri Sanjay Seth, learned counsel for the State. Perused the record. 7. Shri Samaiya learned counsel for the appellant submitted that there is variance in the time stated statement of Govind Singh (PW2) about lodging of the FIR and the actual time when the FIR was recorded. In my view the submission of the counsel for the appellant is misconceived, in fact Govind Singh (PW2) in his statement has stated that the police reached in the night at 12 O'clock to his village and that time itself he reported the incident to the police and the same was recorded as Dehati Nalish (P/3) which bears his signature. In his cross-examination he has further stated that he was taken to the police station where in the morning the FIR was recorded by police constable. On the close scrutiny of the evidence it is clear that the Dehati Nalish (P/3) was lodged at 12.50 in the night and on the basis of which the FIR (Ex.P/4) was lodged by the constable in the next morning at 8.25 A.M. Thus, there is no discrepancy about time of lodging of the FIR as has been pointed out by the learned counsel for the appellant, but on the other hand the statement of Govind Singh (PW2) stands corroborated by documentary evidence. 8. The defence taken by the appellant that the complainant himself has set fire to his house has not found to be proved. The trial Court has considered and discussed the evidence. The reasoning assigned by the trial Court in disbelieving the defence, are just and proper. 8. The defence taken by the appellant that the complainant himself has set fire to his house has not found to be proved. The trial Court has considered and discussed the evidence. The reasoning assigned by the trial Court in disbelieving the defence, are just and proper. The trial Court has correctly held that the complainant Govind Singh (PW2) is a young boy of 15-16 years of age and in the circumstances it is not believable that he will set fire to his own house, as a defence to be taken in the case of setting of fire registered against him by the son of the accused. 9. The impugned judgment is based on sound appreciation of entire prosecution and defence evidence and there is no ground to interfere in the judgment passed by the trial Court. 10. Learned counsel for the appellant in the alternative, also submitted that if the conviction is found to be based on correct appreciation of evidence then in that circumstances the sentence awarded to the appellant be modified and the appellant be sentenced to imprisonment of the term which he has already undergone, for the reasons he further submitted that the accused is aged about 69 years, the incident took place 14 years back, as such it would be a great hardship, if at this point of time, the appellant is sent back to the jail to undergo remaining part of the sentence. 11. In the facts and circumstances of the case this contention of counsel for the appellant appears to be reasonable. The matter is being quite old as the incident took place about 14 years back, the appellant being old person aged by now about 69 years and having remained in jail for a day. In my view it will not be justifiable to send back the appellant to jail, and instead the conviction is maintained but the sentence is reduced to the period already undergone and the fine amount is enhanced to Rs. 2000/- instead of 1000/- out of Rs. 2000 the complainant Govind Singh (PW2) will get Rs.1000/-. The fine amount to be deposited by the appellant in the trial Court within a period of four months from today failing which he will have to undergo the sentence as already awarded by the trial Court. 12. 2000/- instead of 1000/- out of Rs. 2000 the complainant Govind Singh (PW2) will get Rs.1000/-. The fine amount to be deposited by the appellant in the trial Court within a period of four months from today failing which he will have to undergo the sentence as already awarded by the trial Court. 12. Thus, the appeal is partly allowed with the modification on the question of sentence as above.