1 2025:CGHC:52028 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1459 of 2024 1 - Chainu Nishad S/o Bihari Nishad Aged About 56 Years R/o Village Podi, P. S. Bodla District Kabirdham Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through The Station House Officer, Police Station- Bodla, District Kabirdham Chhattisgarh. ... Respondent(s) For Appellant : Shri Awadh Tripathi, Advocate. For State : Shri K.K. Bahrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 17.10. 202 5 1. Although, the appeal was listed for consideration on application for suspension of sentence and grant of bail, however, with the consent of the parties, the appeal is heard finally. 2. The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 24.07.2024 passed by the Sessions Judge, Kabirdham (Kawardha) in Sessions Case No.16/2023 whereby the appellant has been convicted for the offence under Section 436 IPC and sentenced RI for 10 years with fine of Rs.1,000/-, in default of payment of fine, additional RI for one month. 2 3. The prosecution case in brief is that, on 27.01.2023 the complainant Usha Nishad and her husband were sleeping inside their house. At about 1 AM in the night, they saw fire in their kitchen. When she shouted, the person who caused their kitchen ablaze, started running by limping. The person who was running from there was the accused who was having property dispute with them. The fire was extinguished by the complainant and her father. Report Ex.P/3 was lodged by the complainant where FIR Ex.P/4 was registered against the appellant for the offence under Section 436 IPC. The numbered FIR Ex.P/12 was registered at police Station Bodla. Spot map Ex.P/5 was prepared by the police whereas Ex.P/1 by the Patwari. The damage Panchnama Ex.P/2 was also prepared by Patwari in which the damage of property worth Rs.500/- was assessed. The damage Panchnama Ex.P/6 was also prepared by the police authorities in which also the damage of property worth Rs.500/- was assessed. From the spot, burnt ash were seized vide Ex.P/7. The appellant was arrested on 27.01.2023 and one matchbox was seized from him vide seizure memo Ex.P/8. 4. Statement of witnesses under Section 161 CrPC were recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 436 IPC before the Judicial Magistrate First Class, Kabirdham. The case was committed to the court of Sessions Judge Kabirdham for its trial. The trial court has framed charge for the offence under Section 436 IPC. The appellant denied the charge and claimed trial. 5. In order to prove charge against the appellant, the prosecution has examined as many as 5 witnesses. Statement of the appellant under 3 Section 313 CrPC was also recorded in which he denied the circumstances that appears against him, plead innocence and have submitted that due to old property dispute he has been falsely implicated in the offence. One defence witness Aman Kumar Pali was examined by the appellant in his support. 6. After appreciation of oral as well as documentary evidence led by the parties, the trial court convicted the appellant and sentenced him as mentioned in the earlier paragraph of this judgment. Hence this appeal. 7. Learned counsel for appellant would submit that the appellant is not challenging his conviction for the offence under Section 436 IPC, however, he is questioning the quantum of sentence awarded for the alleged offence. Though the house of the complainant was being damaged by burning, however, in view of quantum of damage i.e. only Rs.500/-, the sentence awarded to the appellant is on higher side. He would further submit that the offence of Section 436 IPC does not provide any minimum sentence, the appellant is presently aged about 58 years and he is in jail since 24.07.2024 thereby he has already served for more than one year and three months of his sentence and presently relation between the appellant and complainant is cordial, the sentence may be reduced for the period already undergone by the appellant by enhancing the fine amount suitably. 8. On the other hand, learned counsel for the State opposes and have submitted that causing mischief by fire that too in a residential house of the complainant is a grievous offence. Though fire may not cause any substantial damage, however, looking to the nature of offence and the manner in which the offence is committed, the appellant is not entitled 4 for any further leniency. The trial court has already awarded a reasonable sentence which is not required to be interfered with. 9. I have heard learned counsel for the parties and perused the record of trial court. 10.Although the appellant is not challenging his conviction, however, this court deem it appropriate to examine the evidence available on record against the appellant. 11. PW-2, Usha Nishad, is the complainant, who stated in her evidence that on the date of incident at 9-10 PM after having dinner they went for asleep. In the night, they saw some light outside from window and when they saw that their kitchen was burning, the fire was caused by the appellant and she had seen him causing the fire. The fire was extinguished by water of bore well and on the next day she made a written complaint Ex.P/3 to the police. The FIR Ex.P/4 was registered. Damage Panchnama Ex.P/3 was also prepared and found damage of property worth Rs.500/-. In cross examination, though she admitted that she was having some property dispute with the appellant, but she stuck in saying that it is the appellant who caused fire in her kitchen and she had seen him causing fire. But for minor omissions or contradictions or the story of property dispute, the substantive evidence that the appellant has caused fire in her kitchen could not be rebutted in her cross examination. She duly supported the prosecution’s case that she had seen the appellant causing fire in her kitchen. 12.PW-3, is the sister of complainant PW-2 who stated that on being informed by PW-2 she came to know that the appellant caused fire in 5 her kitchen. PW-1, Jitendra Kumar Bhandari, is the Patwari who prepared spot map Ex.P/1 and damage Panchnama Ex.P/2. 13.PW-4, Lavkesh Khare, is the Head Constable, who registered FIR Ex.P/4 on the basis of written complaint of the complainant Ex.P/3. Though he also admitted that there was dispute between the complainant and appellant with respect to Nazul Land in which the complainant had constructed her house, however, he is the witness of registration of FIR against the appellant and investigation of the case. Nothing could be extracted from him also which makes his evidence doubtful. 14.The case of prosecution is based on the testimony of the eyewitness PW-2 which has duly been proved by the prosecution. Thus, the conviction of the appellant for the offence under Section 436 IPC appears to be correctly held by the trial court and this court does not find any infirmity or illegality in conviction of the appellant. 15.So far as sentence awarded to the appellant for the offence under Section 436 IPC is concerned, the said offence does not provide any minimum sentence, the appellant is of 58 years of age having innumerable responsibilities of his family, looking to previous property dispute and present status of parties that presently their relations are cordial, the appellant remained in jail for one year and three months, therefore, the prayer for reduction of sentence awarded to the appellant is appealing to this court. Accordingly, considering the aforesaid submissions and also keeping in view the law laid down by the Hon’ble Supreme Court in Mohammad Giasuddin Vs. State of Andhra Pradesh, 1977 (3) SCC 287, this court is of the opinion that ends of 6 justice would meet if the sentence awarded to the appellant is reduced to the period already undergone by him. 16.Further, in the matter of Raj Bala Vs. State of Haryana & Others, 2016 (1) SCC 463 in paragraph 1 & 2 the Hon’ble Supreme Court has held as under : “1. In Gopal Singh v. State of Uttrakahand[1], while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:- "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner.We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court.The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis supplied] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat [2], it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of 7 lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.[3]" [Emphasis supplied] And again:- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 17.Considering the submissions of counsel for the appellant and in view of the aforesaid law laid down by the Hon’ble Supreme Court, this court deem it appropriate to reduce the sentence awarded to the appellant for the period already undergone by him by enhancing the fine amount which is payable to the complainant as compensation. 18.Therefore, the conviction of the appellant for the offence under Section 436 IPC is affirmed, however, his sentence is reduced for the period already undergone by him instead of RI for 10 years. The fine amount awarded to the appellant is enhanced from Rs.1000/-to Rs.25,000/-. In default of payment of enhanced fine amount, the appellant 8 shall further undergo RI for one month. On being deposited the fine amount by the appellant, the entire amount of fine i.e. Rs.25,000/- shall be paid to the complainant PW-2 Usha Nishad as compensation provided under Section 395 of BNSS, 2023. 19.With the aforesaid alteration of sentence, the appeal is partly allowed. The appellant is reported to be in jail since 24.07.2024. He be released forthwith, if not required in any other case, subject to compliance of fine sentence. 20.Record of trial court be sent back along with copy of this judgment for necessary compliance. Sd/- (Ravindra Kumar Agrawal) Judge inder