Amit @ Amit Kumar Bairwa vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

This is an appeal of 1996 filed u/s 374 of the Cr.P.C. by appellant Amit @ Amit Kumar challenging the judgment dated 20.12.96 passed in Sessions Trial No. 120/96 by the Additional Sessions Judge, Khachrod convicting the accused for offence u/s 436 of the IPC and sentencing him to undergo 5 years RI and fine of Rs. 5,000/-, in default of payment of fine the appellant was to undergo an additional sentence of one year''s RI. Brief facts of the prosecution case are that on the date of the incident i.e.1.12.95, the complainant Sudhir Kumar filed an FIR Ex.P/1 stating that he was the owner of tent house and was resident of Chambal Sagar Colony, Nagda. At 6 am on the said date when he had gone to relieve himself outside the shop, on coming back he found that accused Amit had entered his shop with plastic can of 5 liters and was pouring kerosene all over his shop. When he was coming running into the shop, accused Amit set fire by lighting the match-stick and started running away. The complainant chased him along with the neighbour tailor Battu Jabbar; however, the accused Amit managed to escape along with the empty jery can. By then the shop of the complainant had been ablazed and all efforts to put down the fire were in vain. The corporation had to be called and the fire was put out with the help of the tanker trolley, by then the articles such as blankets, welding chair and tents were already burnt down. His brother had quarreled with one Anil and there had been a quarrel between the members of the Amit''s family and his brother Santosh and due to this enmity Amit who was the relative of Anil had set fire to his tent house with kerosene. On registering this complaint the prosecution machinery was set into motion and on completion of the investigation the accused was duly charged and committed to his trial.

The accused abjured his guilt and stated that he was falsely implicated in the matter. His defence was that he was falsely implicated due to previous enmity and he examined Sudhir, Gitabai, Goverdhan and Baijnathsingh, besides Dr. Shrichandra Chawla in his defence. The Trial Court however on considering the evidence convicted and sentenced the accused appellant as herein above indicated. Being aggrieved the appellant has filed the present appeal.

Learned Counsel for the appellant has vehemently urged that the conviction was contrary to the evidence on record since the statements u/s 161 of the complainant do not substantiate the prosecution case. Moreover Counsel submitted that there was material omission and contradiction in the testimony of the prosecution witnesses which has not been considered by the Trial Court. Counsel also contended that the claim of the accused was highly exaggerated and he has not sustained the damage as alleged. He prayed for setting aside the impugned judgment of conviction. In alternate Counsel has prayed that if the Court is satisfied regarding the conviction of the accused for offence u/s 436 of the IPC the custodial sentence be reduced to the period already undergone considering the fact that the appellant was only 17 years of age and a student at the time of incident.

Counsel for the State has per contra submitted that the judgment of the Trial Court was in accordance with the law and did not call for any interference. He submitted that there was proper marshalling of evidence and the eyewitness P.W.1 Sudhir Kumar the complainant, P.W.2 Battu have completely substantiated the prosecution case and they have even tried to catch hold of the accused Amit from the spot itself and there is no need to doubt the prosecution case. Moreover Counsel contended that the damage assessment report (Nukshani panchnama) Ex.P/2 clearly assessed the damage to the shop and the articles at Rs. 20,000/-and hence the sentence was in accordance with the law and the appellant did not deserve any sympathy. He prayed for dismissal of the appeal. On considering the above submissions, the evidence available on record and the impugned judgment I find that no infirmity can be found with the conviction of the offence u/s 436 of the IPC; it is based on ocular testimony of two eyewitnesses who have found to be reliable by the trial Court, hence the conviction of the accused for offence u/s 326 is hereby upheld. However, considering alternate prayer of the appellant by the very fact that the incident had occurred in the year 1996 and the appellant was a student at that time the alternate prayer is allowed. The custodial sentence is hereby reduced to the period already undergone. The fine amount however is enhanced to Rs. 25,000/-which shall be paid to the complainant as compensation u/s 357 of the Cr.P.C. within a period of 2 months from the date of this judgment. Needless to say any amount already paid as fine shall be adjusted. On failure to pay the fine within the stipulated period and the appellant shall undergo the remaining sentence as directed by the lower Court.

With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellant is on bail. His bail bond and surety bond are hereby discharged.

A copy of this judgment be sent to the concerned lower Court for compliance.

CC as per rules.