Rajasthan High Court - Jaipur
State Of Rajasthan vs Bhirajram And Ors. on 28 April, 1998
Equivalent citations: 1998CRILJ3791
JUDGMENT A.S. Godara, J.
1. This appeal by leave is directed against the order dated 7-2-1984 passed by the learned Sessions Judge, Bikaner while discharging the accused-respondents of offence under Section 436, I.P.C.
2. Briefly stated, the facts giving rise to this appeal are that Choona Ram resident of Village Kujjeti, lodged a verbal report at the Police Station, Loonkaransal on 29-11-1983 at 10 a.m. alleging that the fields of his own and that of his brother Chota Ram each having area of 50 bighas are situated on the southern side of the village. Both these fields are situated adjacent to each other. He has sown crop of 'Gawar' in 60 bighas and he had also built a hut in the middle of the, field to keep a watch of the crop standing there. The harvested crop of 'Gawar' was stacked in the 'Khalihan' prepared just adjacent to the hut and a thorn fencing was raised around the same. On 24-11-1983, he had gone to attend some Court case at Ajmer and on his return on 28-11-1983 at Bikaner, he learnt through one Kishana Ram that, in his absence, the accused-respondents had set ablaze the harvested crop stacked in the 'Khalihan' as well as the thorny fence and the hut resulting in their destruction and hence F.I.R. No. 104/83 was registered, on his information, under Sections 447, 435 and 436, I.P.C and, as a result of investigation, the accused-respondents were challenged for commission of the alleged offences including the one under Section 436, I.P.C. before the committal Court, which, in turn, committed the case to the Court of Sessions Judge, Bikaner, who after hearing both sides, vide his impugned order, held that there were no grounds to believe that offence under Section 436, I.P.C. was committed and, consequently, while discharging the accused-respondents from offence under Section 436, I.P.C., rest of the offences including one under Section 437, I.P.C. being triable by the Court of First Class Magistrate, the case was remitted to the Court of Chief Judicial Magistrate in exercise of power vesting under Section 228(1), Cr.P.C. and, being aggrieved by the said order, this appeal by filing an application purporting to be under Section 378(1) and (3), Cr.P.C. was filed and this Court was pleased to have granted leave to file appeal vide its order dated 28-9-1984.
3. I have heard the learned P.P. for the State as well as the learned counsel for the accused-respondents and also perused and considered the impugned order dated 7-2-1984.
4. At the out set, it may be observed that so far as application of provisions of Section 378, Cr.P.C. is concerned, it inter alia, provides that save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court (or an order of acquittal passed by the Court of Sessions in revision). Besides, Sub-section (3) of it provides that no appeal under Sub-section (1) of Sub-section (2) shall be entertained except with the leave of the High Court.
5. In the instant case, admittedly, there was no trial of the case and, instead, at its very initial stage as provided under Sections 227 and 228, Cr.P.C. the learned Sessions Judge, after hearing both the sides and on consideration of evidence and the record relied upon by the prosecution in support of the allegations of the charge-sheet, the learned Sessions Judge while considering whether there was sufficient grounds for proceeding against the accused respondents or not, was of the opinion that there is no ground forpresuming that the accused respondents committed an offence under Section 436, I.P.C. warranting trial by the Court of Session and consequently, in exercise of its power under Sub-section (1) of Section 228, Cr.P.C., since rest of the offences, as borne out from the material collected by the Investigating Agency resulting from investigation, being triable by a First Class Magistrate, the case was ordered to be remitted to the Court of Chief Judicial Magistrate, Bikaner for trial according to law and, consequently, in exercise of power under Section 227, Cr.P.C. on the basis of aforesaid conclusion, the accused-respondents stood discharged from the offence under Section 436, I.P.C. and, as a result, the impugned order resulted indischarge simplicter of the accused-respondents from the offence under Section 436, I.P.C. and the stage of acquittal, consequent upon full-fledged trial of the accused-persons by the Court of Sessions, had not as yet reached and before formal charges could be framed, the impugned order came into being resulting in discharge of the accused-respondents from offence under Section 436, I.P.C. and, resultantly, the provisions of Section 378(1), Cr.P.C. were not attracted and hence the appeal so filed was misconceived and the same is not maintainable. On the contrary, a criminal revision under Section 397/401, Cr.P.C. could have been filed while challenging the impugned order in regarding to its correctness, legality or propriety but the impugned order is not appealable at all.
6. However, even in the interest of justice, in case this appeal is treated to be an application/ petition for revision, as regards its merits, the learned P.P. as well as the learned counsel for the accused-respondents have been given an opportunity to challenge or support the same.
7. The short question that fall for consideration is whether the impugned order passed by the learned Sessions Judge while discharging the accused respondents from an offence under Section 436, I.P.C. suffers from any incorrectness, illegality or impropriety warranting its being quashed.
8. The learned P.P., while assailing the impugned order, reiterating all the contentions raised by the learned P.P. before the learned Sessions Judge, has contained that the learned Sessions Judge fell into a serious legal error while, on the face of material on record, holding that the thatched-hut, used for temporary dwelling of the complainant and his family, was not covered by the definition of 'Building' not being ordinarily used as a place of human-dwelling and hence commission of alleged mischief by fire was not found resulting in discharge of the accused-respondents and this view is not sustainable as borne out of the statements of the witnesses including first informant himself that the thatched hut was soraised for dwelling to keep watch over the crop sown, grown-up and harvested and, lastly, being stacked in the 'Khalihan' and, accordingly, the accused-respondents by setting the hut ablaze and as such causing mischief by fire were prima facie liable to be tried for an offence under Section 436, I.P.C. and the learned Sessions Judge, on the face of material available on record, exceeded its jurisdiction resulting in manifest injustice warranting quashing of the impugned order.
9. However, the learned counsel for the accused-respondents has fully supported the legality and propriety of the impugned order.
10. Section 436, I.P.C. provides that whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life,or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
11. Similarly, Section 442, I.P.C. provides that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house trespass."
12. As regards the evidence and material relied upon by the prosecution in support of its allegations in regard to commission of offence under Section 436, I.P.C, in addition to those under Sections 447 and 435, I.P.C, Choona Ram, first informant, has stated in his statement under Section 161, Cr.P.C. that he had sown and harvested crop of 'Gawar' which was, lastly, stacked at his 'Khalihan' prepared adjacent to his thatched-hut which was raised for the purpose of dwelling. A cot was lying in the hut. Here it may be observed that only cot is alleged to have been kept in the hut and no other household goods were stored or kept for security or for any purpose in the hut. Besides, it has also not been stated as to whether any gate or obstruction for free access to the hut was also kept/existing or not. The prosecution's clear case is that 'Khalihan' was prepared adjacent to the hut and evidently the same could not form a part of the hut to be covered by the definition of 'Building' as borne out of Section 436 or even Section 442, I.P.C. extracted above. The crop of 'Gawar' was stacked in the open 'Khalihan' and not in the hut itself.
13. Similarly Chola Ram Girdhari Ram, KishnaRam, SanwatRam, Mohan Ram, Keshara Ram, Panna Ram, Sugana Ram and Gopal Ram have also, while corroborating the statement of Choona Ram in regard to harvested crop of 'Gawar' stacked in the "Khalihan' having been set ablaze and reduced to ashes, have stated that while the crop of 'Gawar' was harvested and collected for being winnowed and for the purpose of keeping a watch and protection of the crop stacked there, a thatched-hut was raised by the side of the 'Khalihan'. As stated by Choona Ram, there was a simple cot for the purpose of rest which was kept in the thatched-hut and no other household goods were lying there. There was no kitchen nor any remnant of dwelling and residing in the hut itself. It was nothing but a thatched sheltering place meant for temporary rest to keep watch over the harvested crop stacked in the adjacent 'Khalihan'. No other goods or crop or any valuable was either kept for the purpose of safety in the hut. There is absolutely absence of evidence to show that it is covered by definition of 'Building' as mentioned above, that there was any brick and morterof even a finished wall and, instead, it was merely a thatched-shed without any bars, doors etc. and its resting/supporting items have also not been disclosed either in the site plan prepared by the Investigating Officer or in the statement of the witnesses. Therefore, on the basis of material available on record and relied upn by the prosecution in support of charge under Section 436, I.P.C. against the accused respondents, on the face of the prosecution allegations itself that the accused respondents claimed the disputed land of the filed whereat the occurrence took place to be their's own and Choona Ram and his brother Chola Ram having illegally occupied the same, any how, set the thatched hut as well as the harvested crop lying there ablaze resulting in its being burnt and reduced to ashes. Besides, though the ashes of burnt crop were noticed at the site of the occurrence but no remnant in proof of the fact that there did exist any 'Jhompri' specially meant for the purpose of human dwelling specially in the aforesaid circumstances when Choona Ram and his family are found to have been residing elsewhere and there was no provision for mess etc. and no otherfacilities of the nature of dwelling were found at the site and, in these circumstances, merely because a temporary structure for resting to take care of and watch of the harvested crop by the side of the 'Khalihah' was raised which was so set ablaze resutling in commission of offence of mischief, inabsence of other evidence bringing the same 'kuttcha' and temporary structure within the encompass and definition of "Bulding" as defined under Section 436, I.P.C. meant for human dwelling, the learned Sessions Judge on the basis of evidence and material available on record does not appear to have committed any illegality or impropriety while holding that there was no evidence that "Jhompri" wherein, admittedly, no crop or any other valuable property was kept or the purpose of security of otherwise, was set ablaze, was at all a building within the meaning of Section 436, I.P.C. so as to cover the alleged act of the accused-respondents within the mischief by fire punishable thereunder.
14. In these circumstances, specially when this occurrence is alleged to have taken place as early as on 25-11 -1983 and after a lapse of about 141/2 years, no purpose would be served in case the impugned order is as yet set aside and the matter is remitted to the learned Sessions Judge for conducting a sessions trial. Besides, the act of the accused-respondents could also be well covered by the provisions of Section 435, I.P.C. for which they are yet to be required to be tried according to law.
15. On the basis of above discussion, there is no merit in this petition, even in case the same is treated as a revision petition instead of an appeal against acquittal as observed hereinbefore and, consequently, from whichever angle it is viewed, there is no merit in this petition and so also it is liable to be dismissed.
16. Accordingly, this appeal is dismissed, as being not maintainable and, alternatively, even if it is treated as a criminal revision, the same is devoid of any merit and the same is the fate of the revision petition resulting, in its dismissal.