Madhya Pradesh High Court
Mavsingh vs The State Of Madhya Pradesh on 14 January, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
Cr.A.No.7592/2019
(Mavsingh Vs. State of M.P.)
Indore, Dated: 14.01.2020
Shri Tarun Saxena, learned counsel for the appellant.
Shri Vikas Yadav, learned GA for the
respondent/State.
The appellant has filed the present appeal being aggrieved by the judgment dated 22.06.2018, passed by the Sessions Judge, Bioara in Sessions Trial No.351/2017, whereby he has been convicted under Section 436 of IPC, RI with fine of Rs.25,000/- and 1 year RI with default stipulation.
As per prosecution story, the complainant Roshanlal purchased a house 4 years ago from 02.08.2017 from Devilal and the complainants are residing in the neighbour house, they used to quarrel with the complainant for the dispute of a door. On 02.08.2017 near about 12:00-1:00 AM in the night he heard the sound of falling something and after awakening he saw that accused persons are putting in his house into fire and ran away. He shouted and his son Suraj Singh and Jamnalal & other villagers reached the spot. Due to the said fire electric motor pump, engine light and some scrap worth of Rs.50,000/- have been burned. He lodged an FIR in the Police Station on 03.08.2017 (Exhibit P/8). The Police started the investigation and collected the burnt articles from the 2 spot, prepared a panchnama and calculated the loss. The statements under Section 161 of the Cr.P.C were recorded. The accused persons were arrested and from their house a cane of kerosene and match box were recovered. After completing the investigation, challan was field. The prosecution examined Pawan as PW1, Roshanlal as PW2, Suraj Singh as PW3, Jamnalal as PW4, Madanlal (Head Constable) as PW5, Ashok Kumar Bhagat (ASI) as PW6. After evaluating the evidence came on record, learned Sessions Judge came to the conclusion that the present appellant has committed offence under Section 436 of IPC and accordingly sentenced him to undergo the jail sentence for 5 years RI with fine of Rs.25,000/- (1 year additional RI in default stipulation), hence, the present appeal before this Court.
At the very outset, learned counsel for the appellant submits that he is not challenging the impugned judgment on merit but praying for reduction of sentenced from 5 years to the period already undergone. According to him, the appellant has been falsely implicated in the case. He is neighbor to the complainant and as per the complainant's statement there is previous enmity between them and because of which false implication cannot be ruled out. PW1 has turned hostilee. PW2 is the complainant and PW3 and PW4 are his son and they have supported the case of the prosecution but prosecution did not examine any independent witness. The appellant has no criminal 3 antecedents and he is the first offender. He further submits that the appellant is in jail since last more than 2 years and deposited the fine amount and as per the Exhibit P/7 the complainant had suffered the loss of Rs.50,000/-, therefore, the fine amount be released to him.
Shri Vikas Yadav, learned GA for the respondent/State opposes the aforesaid prayer by
submitting that looking to the facts and circumstances of the case and the evidence came on record, learned Court has rightly awarded the sentence of 5 years RI and the same is not liable to be interfered.
In a recent judgment passed by the Apex Court in the case of Shanthamalleshappa Vs. State of Karnataka, reported in 2019(3) MPLJ (Cri.)(S.C.) 4271 has set aside the conviction under Section 436, 34 of IPC on the ground that there are material contradictions in the oral evidence adduced on behalf of the prosecution and further, except the interested testimony of PWs-1 to 3, no other independent person is examined as a direct witness to the incident.
The appellant is a first offender and there is no material that he was earlier implicated in the offence. There is a previous enimity between the appellant and the complainant. He has already deposited the fine amount and already undergone the period of more than 2 years in the jail. Hence, 5 years' conviction is on a higher side, hence, appeal is partly allowed. The period of sentence is 4 reduced from 5 years to the period already undergone and the fine amount is maintained. The amount so deposited by the appellant be released to the complainant.
Appeal is partly allowed.
Record of trial Court be send back.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2020.01.17 13:14:07 +05'30'