2024:CGHC:36846 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 688 of 2011

1 - Mahendra Kumar @ Golu S/o Horilal Kaushik, R/o Dahda, P.S.

Chakarbhatha, Distt.-Bilaspur, C.G.

... Appellant versus

1 - State Of Chhattisgarh, through the Station House Officer, Police Station Chakarbhata, District Bilaspur (CG)

... Respondent For Appellant : Shri Rudra Pratap Dubey Advocate on behalf of Shri Gautam Khetrapal, Advocate For Respondent/State : Shri Mandvi Bharadwaj, PL (Hon’ble Shri Justice Arvind Kumar Verma)

Judgment on Board

18/09/2024 This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) is directed against the impugned judgment of conviction and order of sentence dated 16.12.2010 passed by the learned Nineth Additional Sessions Judge, (FTC) Bilaspur (CG)

in Sessions Trial No.80/2010 whereby the appellant has been found guilty for the commission of offence under Section 436 IPC and sentenced to undergo RI for 3 years and to pay fine of Rs. 3,000/- in default of payment of fine to further undergo additional imprisonment for two months.

2. Allegation against the appellant is that the complainant Ramshila Bai used to reside along with her husband at village Dadha and earned her living by doing labour work. On 20.06.2009, at about 8.00 pm. the appellant committed mischief by setting her hut on fire as a result of which the dwelling house and the belongings ie. clothing, food articles, cot and utensils got burnt and report was lodged at police station Chakarbhata. Onthe basis of the said report, investigation was carried on and the burnt clothing, vessel and ash was seized. Spot map was prepared and statements of the witnesses were recorded. Charges were framed against the accused/appellant and after completion of the investigation, charge sheet was filed against the accused/appellant under Section 436 IPC.

3. So as to hold the accused/appellant guilty, prosecution has examined as many as 05 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

4. After hearing the parties, trial Court has convicted and sentenced the accused/appellant for the offences punishable under Section 436 IPC. Hence this appeal.

5. Assailing the conviction, learned counsel for the appellant would submit that the judgment impugned is perverse and contrary to the facts and that the prosecution has not been able to prove that the house of the complaint comes under the definition of Section 436 IPC. He further submits that the dwelling was as such a chaupal and that the same was used as a dwelling and that the appellant was not having the knowledge about the belongings of the complainant and thus, the appellant had not committed mischief intentionally and only on assumption, without there being any cogent or clinching evidence, he has been convicted. He would further submit that the prosecution case is full of material contradictions and omissions. Lastly, he submits that the victim and the appellant are relatives and due to some rivalry between the families, the appellant has been falsely implicated in the crime in question.

6. Per contra, learned State counsel would support the impugned conviction and sentence on the plea that the victim being in possession of the house, the offence under Section 436 IPC is made out even if the structure is built as Chaupal. He would also submit that minor contradictions and omissions need not be given weight.

7. Heard learned counsel for the parties and perused the material available on record with utmost circumspection.

8. To appreciate the rival submissions and in order to test the validity and correctness of the impugned conviction we have perused the entire record.

9. It is the case of prosecution that on the date of incident, on the basis of information given by the complainant, the FIR Ex.P-4 was lodged wherein she has s