The State of Chhattisgarh Vs Manoj Mahar

State/appellant herein against the judgment dated 25.01.2018 passed in Sessions Case No.04/2017 by the learned Sessions Judge, Rajnandgaon (C.G.), whereby the learned Trial Court acquitted the accused/respondent herein of the charge under Section 436 of the Indian Penal Code.

¶18

The prosecution case, in brief, is that complainant Baleshar was running a handcart shop near Ration shop in village Bamhani Charbhatta, where he used to sell chocolates, biscuits, mixture, namkeen, Kurkure, gutka pouches, etc. On 14.11.2016, he was sleeping at his house during the night. On 15.11.2016, at about 5–6 a.m., Kanhaiya Kunjam (PW-1) came and informed him that accused/respondent herein Manoj Mahar, a resident of the village, was setting fire to his handcart. Upon receiving this information, the complainant rushed to the spot and saw that his handcart and the articles kept therein, such as biscuits, chocolates, namkeen, cigarettes, etc., had been completely burnt. On the report lodged by complainant Baleshar, an FIR (Ex.P-1) bearing Crime No. 268/2016 was registered at Police Outpost Chhuriya against the accused/respondent under Section 436 of the Indian Penal Code.

¶19

During the course of investigation, the police conducted spot inspection (Ex.P-3) and prepared the loss panchnama

¶20

3

¶21

(Ex.P-5) and spot map (Ex.P-2). Statements of witnesses were recorded. Upon finding sufficient evidence against the accused/respondent, he was arrested vide Ex.P-6. After completion of investigation, a charge-sheet for the offence under Section 436 of IPC was filed before the jurisdictional Court followed by charge under Section 436 of IPC. The accused/respondent however denied the charge and pleaded for trial.

¶22

In order to prove its case, the prosecution examined as many as 07 witnesses. Statement of the accused/respondent was also recorded under Section 313 of the Cr.P.C. wherein the accused/respondent pleaded innocence and false implication in the crime. No defence witness has been examined by the accused/respondent in the case.

¶23

The learned Trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment acquitted the accused/respondent of the charge under Sections 436 of IPC. Hence, this appeal by the State/appellant.

¶24

Mr. Avinash Singh, learned Govt. Advocate for the State/ appellant submits that the impugned judgment suffers from serious legal infirmities, is perverse in nature, and is based

¶25

4

¶26

on improper appreciation of facts and evidence on record. Learned State counsel further submits that the learned Trial Court has not properly appreciated the evidence on record while acquitting the respondent of the offences charged. The testimony of Kanhaiya Lal (P.W.-1), an eye-witness to the incident, clearly narrates the role of the accused in the commission of the offence and stands duly corroborated by the evidence of Raj Kumar Mahar (P.W.-3). However, the learned Trial Court overlooked the material aspects of their depositions. It has been further submitted that the prosecution evidence, taken as a whole, was sufficient to establish the case beyond reasonable doubt. The learned Trial Court has laid undue emphasis on minor omissions and inconsistencies in the prosecution evidence, which are not of such nature as to discredit the core of the prosecution case. Such minor discrepancies are natural and do not affect the overall credibility of the prosecution witnesses. Thus, the findings recorded by the learned Trial Court call for interference, as the impugned judgment has resulted in miscarriage of justice and the same deserves to be set aside.

¶27

None for accused/respondent.

¶28

We have heard learned counsel for the parties and perused

¶29

5

¶30

the material available on record.

¶31

It is clear from the record of the learned Trial Court that the learned Trial court framed charge under Section 436 IPC and after appreciation of oral and documentary evidence, the learned Trial Court acquitted the accused/respondent of the said charge on the ground that the prosecution has failed to prove its case beyond reasonable doubts.

¶32

Kanhaiya Lal (PW-1) has deposed that he knows accused Manoj who is a resident of village Bamhani Charbhatta. He deposed that during the paddy harvesting season, in the early morning hours, while he was going towards the pond to attend the call of nature, he saw accused Manoj Mahar returning after taking a bath. The accused went and sat near the handcart and after a short while moved ahead and stood there. The accused was carrying fire, which he first placed on the handcart; however, the handcart did not catch fire. Thereafter, the accused took out a matchstick and set fire to the pan handcart, as a result of which it caught fire. After setting the handcart on fire, the accused fled towards his house. Thereafter, the witness raised an alarm and called the nearby residents. Subsequently, Rajkumar and Baleshar reached the spot and other villagers also gathered there. The witness informed the villagers that Manoj had set

¶33

6

¶34

the handcart on fire. The handcart and the shed situated in front were burnt, which were thereafter extinguished by the villagers. In cross-examination, this witness has admitted that while recording his police statement (Ex.D-1), he had given particular detail regarding the use of fire that accused took out a matchstick and set fire to the pan handcart, but if the said statement does not find place in his police statement (Ex.D-1), he cannot tell the reason.

¶35

Complainant Baleshar (PW-2) has stated that he was informed by Kanhaiya Lal (PW-1) about the setting his handcart on fire by accused and thereafter, he lodged the FIR (Ex.P-1) in police station. This witness has admitted his signature in FIR (Ex.P-1), spot map (Ex.P-2), panchanama (Ex.P-3), seizure memo (Ex.P-4) and loss panchanama (Ex.P-5). In cross-examination, this witness has candidly admitted that he had not seen the accused setting his handcart on fire and the same was informed by Kanhaiya Lal (PW-1).

¶36

Likewise, Rajkumar Mahar (PW-3), Dhanush Lal (PW-4), Ramadhar (PW-5) and Vimala Bai (PW-6) who are the neighbours of complainant (PW-2) have also unequivocally stated that Kanhaiya Lal (PW-1) informed that accused set the handcart of complainant on fire.

¶37

7

¶38

From the testimony of Kanhaiya Lal (PW-1), it is evident that although the witness claims to be an eye-witness, the specific manner in which the fire was allegedly set ‘namely, the use of fire and matchstick’ does not find place in his statement recorded under Section 161 CrPC (Ex. D-1).

¶39

Further, complainant Baleshar (PW-2) has admittedly not witnessed the incident and his knowledge is entirely based on the information allegedly given by PW-1. Similarly, the testimonies of Rajkumar Mahar (PW-3), Dhanush Lal (PW4), Ramadhar (PW-5) and Vimala Bai (PW-6) are purely hearsay in nature, as they too have deposed only about what was told to them by PW-1. Thus, no independent or direct corroboration is available to support the ocular version of PW-1 on the material aspect of the alleged act. In a case resting substantially on ocular testimony, such omission assumes significance, particularly when no independent corroboration is forthcoming on the material aspect of the act attributed to the accused.

¶40

The learned Trial Court after having minute appreciation of oral and documentary evidence, statement of Kanhaiya Lal (PW-1)-eye witness to the incident and his police statement (Ex.D-1), has rightly finds that the testimony of eye witness Kanhaiya Lal (PW-1) is not reliable and has taken a

¶41

8

¶42

plausible and reasonable view in extending the benefit of doubt to the accused. The acquittal is based on proper appreciation of evidence and settled principles of criminal jurisprudence.

¶43

16. The Hon'ble Apex Court in its recent judgment dated 12.02.2024 (Criminal Appeal No 1162 of 2011) passed in the matter of Mallappa and Ors. Versus State of Karnataka , has held in para 36 as under:-

¶44

36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-

¶45

"(I) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive-inclusive of all evidence, oral and documentary;

¶46

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

¶47

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

¶48

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

¶49

9

¶50

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

¶51

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

¶52

Thus from the discussion aforesaid and judicial pronouncement of Hon’ble Supreme Court in the matter of Mallappa (supra) & the view taken by the learned Trial Court in acquitting the accused/respondent of the charge under Section 436 of IPC, this Court finds no illegality in the order impugned acquitting the respondent particularly when there is a settled legal position that if on the basis of record two conclusions can be arrived at, the one favouring the accused has to be preferred. Even otherwise, the prosecution thus has utterly failed in proving its case beyond reasonable doubt and the Trial Court has been fully justified in recording the finding of acquittal which is based on proper appreciation of evidence available on record. Furthermore, in case of appeal against the acquittal the scope is very limited and interference can only be made if finding recorded by the trial Court is highly perverse or arrived at by ignoring the relevant material and considering the irrelevant ones. In the present case, no such

¶53

10

¶54

circumstance is there warranting interference by this Court.

¶55

18. Accordingly, the acquittal appeal is dismissed

¶56

Sd/-

¶57

(Rajani Dubey) JUDGE

¶58

Sd/- (Radhakishan Agrawal) JUDGE