Chattisgarh High Court
Gopi Chaturvedi vs State Of Chhattisgarh on 8 August, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 645 of 2017
Gopi Chaturvedi S/o Devanand Chaturvedi, Aged About 32
Years R/o Village Paloud, Police Station Mandir Hasaud, Tahsil
And District Raipur, Chhattisgarh, Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through The Police Station Mandir
Hasaud, District Raipur, Chhattisgarh.
---- Respondent
For the appellant : Shri P. Chetan Kumar, Advocate For the State : Shri Ankur Kashyap, P.L. Hon'ble Shri Justice Sachin Singh Rajput, Order on Board 08.08.2022 This appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 23.3.2017 passed by Additional Sessions Judge, Raipur, CG in Sessions Trial No. 53/2016 convicting him under Section 436/34 IPC and sentencing him to undergo RI for 10 years and pay fine of Rs. 5000/-, in default of payment of fine to further undergo RI for six months.
2. Case of the prosecution in brief is that on 24.12.2014 over some matter the accused/appellant had a quarrel with Gulshan (PW-7) in which the complainant (PW-3) had made intervention. It is alleged that on 25.12.2014 the accused/appellant had threatened the complainant of not permitting him to live in the village as he had stood a witness against him. On that day at about 8.00 pm when the complainant was watching TV in the house of Gulshan, he heard the sound of breakage of thatched roof. On hearing that sound, he came out of the house and saw accused Gopi, Mantu, Karan and Dharmu present over his roof top. It is further alleged that the complainant also saw the accused persons dismantling the thatched roof and setting fire to the same. It is alleged that thereafter the accused persons tried to run away in their Safari vehicle but as the vehicle did not start, they went away on foot. According to the case of the prosecution, on account of fire being set after pouring petrol, the household items including gold and silver ornaments, TV, Sofa, Almirah etc. and cash of Rs. 30,000/- were destroyed. After being informed, Sarpanch of the village also came to the spot and on being told by him, matter was reported to the police. After registration of FIR Ex. P-5 against four persons including the appellant herein under Section 436/34 IPC, the criminal law was set in motion and after completion of procedural formalities charge-sheet was filed against them. After the case being committed to the Court of Sessions it was transferred to the concerned Additional Sessions Judge who framed the charge under the same sections.
3. Learned Additional Sessions Judge by the judgment impugned convicted and sentenced the accused/appellant as mentioned above.
4. Counsel for the appellant submits that the trial Court while passing the judgment impugned has ignored the factum of previous enmity between the accused/appellant and the complainant where a case was registered against the complainant under Section 307 IPC at the instance of the accused/appellant herein, and on account that previous animosity, the accused/appellant has been dragged into a false case. He further submits that the findings recorded by the Court below being not in conformity with the evidence adduced by the prosecution, are not sustainable in law and are liable to be set aside. In the alternative, counsel for the appellant relying upon the decision of the Apex Court in the matter of Satender Kumar Antil vs. Central Bureau of Investigation and another reported in (2021) 10 SCC 773 submits that as out of the total sentence of RI for 10 years, the appellant has already remained in jail for about seven years and thus completed more than half of the sentence imposed on him, the sentence may be reduced to the period already undergone.
5. On the other hand learned State counsel supports the judgment impugned and submits that there are as many as seven eyewitnesses to the incident and they all have categorically stated about the house of the complainant being set on fire by the accused/appellant after pouring petrol, and being so the Court below has been fully justified in relying upon their testimony and recording the finding of conviction and sentence as detailed above, and therefore, no interference with the same is called for.
6. Heard counsel for the parties and perused the material available on record including the judgment impugned.
7. Perusal of the record goes to show that there are as many as seven eyewitnesses to the incident namely Sadhuram Chandrakar - the complainant (PW-3), Smt. Parmabai (PW-4), Urmila Dhruv (PW-5), Chhotu Dhruv (PW-6), Gulshan Dhruv (PW-7), Raja Dhruv (PW-8) and Dasru (PW-9). From the composite reading of their deposition, it is apparent that on the date of incident they all heard the sound of breakage of thatched roof and after coming out they saw the accused/appellant and others dismantling the roof and setting the same on fire by pouring petrol. Their deposition further goes to show that after setting the house of the complainant on fire, all the accused persons came down and tried to flee away by the Tata Safari vehicle but when the vehicle did not start, they walked away. It is also apparent from their testimony that after the accused persons went away, the fire extinguisher was called to put off the fire. On material particulars, all these witnesses remained firm in the cross-examination also and have stated the same thing as in the examination-in-chief. This apart, in presence of two witnesses (PW-3 and PW-7) a Tata Safari vehicle was also seized under Ex. P-4. Thus, in this view of the factual background in the light of the evidence of the witnesses, conviction of the appellant under Section 436 IPC appears to be strictly in accordance with law and the trial Court has not committed any illegality or infirmity in recording the same. It is accordingly maintained.
8. Now this Court shall consider the submissions of the counsel for the appellant with regard to reduction of sentence to RI for seven years from that of 10 years as imposed by the trial Court. Division Bench of Allahabad High Court in the case of Durga Singh v. State of UP reported in (2015) SCC Online (Allahabad) 8971 has held as under:
"19. The sentencing procedure is given in the Code of Criminal Procedure, which provides broad discretionary sentencing powers to judges. In the absence of an adequate sentencing policy or guidelines, it comes down to the judges to decide which factors to take into account and which to ignore. From various judgments of Hon'ble Apex Court it has been established that at the time of sentencing the Courts should consider the aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. It is erroneous for the court to mechanically proceed to impose any sentence without taking into account all aggravating and mitigating circumstances."
9. In the aforementioned Division Bench judgment, considering the aggravating and mitigating circumstances of the case, the sentence of RI for 10 years has been reduced to RI for 07 years.
10. As regards the case in hand, the aggravating circumstance is that the accused/appellant was found setting fire to the house of the complainant causing loss of about Rs. 2,00,000/- whereas the mitigating circumstance is that he did not misuse the liberty granting to him by granting temporary bail for a period of one month, that at the time of incident he was 32 years of age, and that no adverse report regarding his behaviour etc been has been received from the jail where he remained for more than six years.
11. Thus considering the facts and circumstances of the case and the aggravating and mitigating circumstances mentioned above, this Court is of the opinion that interest of justice would be served if the jail sentence of 10 years imposed on him is reduced to 07 years. Order accordingly. Sentence of fine is however left undisturbed.
12. The appeal is thus allowed in part.
Sd/-
(Sachin Singh Rajput) Judge Jyotishi