Punjab-Haryana High Court
Sukhdev Singh vs State Of Punjab on 19 September, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA No. S-1290-SB-2001 1
In the High Court of Punjab and Haryana at
Chandigarh.
CRA No. S-1290-SB-2001
Date of Decision:- 19.09.2013
Sukhdev Singh
...Appellants
Vs.
State of Punjab
...Respondent.
CORAM : HON'BLE MR.JUSTICE NARESH KUMAR SANGHI.
Present: - Mr. R.S.Malhotra, Advocate,
for the appellant.
Mr. Sandeep Chhabra, DAG, Punjab.
NARESH KUMAR SANGHI,J (Oral).
Challenge in this appeal is to the judgment of conviction and order of sentence dated 28.09.2001 whereby the appellant, Sukhdev Singh, was held guilty by the learned Additional Sessions Judge, Amritsar, for the offences punishable under Sections 427 and 436, IPC, and ordered to undergo the following sentences:-
Section Sentence (RI) Fine (in `) In default (RI) 427, IPC Six months - -
436, IPC Three years 1000/- Three months Both the sentences were ordered to run concurrently. Brief facts of the case are that appellant Sukhdev Singh is brother of complainant Baldev Singh (PW1). They had a Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 2 property dispute. Baldev Singh (complainant) had erected a dhara (a shed with temporary hatched roof) and the same was being used for tethering cattle. On 03.02.1999 at about 8.00 P.M., Baldev Singh-PW1 (complainant) was present at his house and on hearing a noise from outside his house, he rushed to the said place and found that the appellant, Sukhdev Singh, had set the dhara on fire. The complainant immediately got out his cattle from the dhara and shifted to a safe place. The said occurrence was witnessed by Rajinder Singh (PW4) also. The matter was reported to the police on 04.02.1999, on the basis of which, formal FIR No. 32, dated 04.02.1999, for the offences punishable under Sections 427, 436 and 506, IPC, was registered at Police Station Sultanwind, District Amritsar. The appellant was arrested; the loss due to fire was got assessed from Arvinder Singh (PW3), a Civil Engineer, who reported that loss was to the tune of `3200/-.
After completion of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate, who, in turn, committed the case to the Court of Session since Section 436, IPC, was exclusively triable by latter court.
Charges for the offences punishable under Sections 427, 436 and 506, IPC, were framed against the appellant to which, he pleaded not guilty and claimed trial.
After completion of the prosecution evidence, the incriminating evidence was put to the appellant in terms of Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 3 Section 313, Cr.P.C., who denied the same and pleaded innocence. In defence he examined two witnesses.
After completion of evidence of both the sides, the learned trial Court held the appellant guilty for the offences punishable under Sections 427 and 436, IPC and awarded the sentence as has been mentioned in the initial part of this judgment.
The appellant was acquitted of the charge punishable under Section 506, IPC.
Learned counsel for the appellant at the very outset submits that even if the whole case of the prosecution is taken at its face value then also, the ingredients of Section 436, IPC, are not attracted in the present case. He further submits that at best the appellant can be held guilty for the offence punishable under Section 435, IPC. However, he has not assailed the conviction for the offence punishable under Section 427, IPC.
In support of his contention, he has placed reliance on Babulal and another Versus State, AIR 1952 Allahabad 146; Chander Versus State of Haryana, 2008(4) R.C.R.(Criminal) 716; unreported judgment of this court passed in the matter of Satnam Singh and others Versus State of Punjab, Punjab Criminal Appeal No. 529-SB of 2002, decided on 12.01.2011; and yet another unreported judgment of this court passed in the matter of Shiv Parshad and others Versus State of Haryana, Haryana Criminal Appeal No. 558-SB of 1997, decided on 07.01.2010.
On the other hand, learned counsel for the State has Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 4 very fairly conceded that the structure which was set on fire was temporary one as it was having thatched roof and being used for tethering cattle by the complainant. He further submits that the findings recorded by the learned trial court are well based and, therefore, no interference is called for.
I have heard learned counsel for the parties and with their able assistance gone through the material available on record.
Though the counsel for the appellant has confined his argument to the extent that no offence under Section 436, IPC, is made out against the appellant; that at best he could be held guilty under Section 435, IPC; and has not assailed the conviction of the appellant for the offence punishable under Section 427, IPC, but to satisfy the conscience of this court, the whole material has been reappraised.
In order to substantiate its allegations, the prosecution examined the following witnesses:-
PW1 Baldev Singh- He had reported the matter to the police. He had specifically deposed that on 03.02.1999 at about 8.30 P.M, when he was present at his house, he heard a noise and went to the spot and saw that the appellant, Sukhdev Singh, had put dhara on fire. The complainant took out his cattle from the said structure and took to a safe place.
PW2 Dilbagh Singh, Photographer- He deposed that at the asking of the police, he visited the place of Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 5 occurrence and clicked the photographs (Exhibits P-1 to P6) and negatives of which are Exhibits P-7 to P-12; PW3 Arvinder Singh, Civil Engineer- He deposed that at police request, he inspected the house of Baldev Singh and found that one wooden stair case and tarpaulin were in damaged condition. He further deposed that according to his calculations, the loss was to the extent of `3200/-;
PW4 Rajinder Singh, an eye witness-
witness He deposed that on 03.02.1999 at about 8.00/8.30 P.M., when he was present at his house, he heard a noise and went to the spot and found that Sukhdev Singh (appellant) and Baldev Singh (complainant) were fighting with each other. A burnt tarpaulin, 3-4 bricks and match box were lying there. Many persons had also gathered there. Sukhdev Singh had set dhara on fire. The dhara was made of bamboo and the roof was of canvas. Next day, the police visited the spot and took into possession the burnt tarpaulin, rope, half-burnt woods and one match box vide recovery memo (Exhibit PD). PW5 ASI Shivdarshan Singh- He had investigated the case and deposed regarding the investigation conducted by him and, thereafter, the prosecution evidence was closed.
The appellant examined Arjan Singh as DW1 who deposed that Sukhdev Singh and Baldev Singh belonged to his village and Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 6 they had a property dispute. He further deposed that he was not aware as to how the dhara was set on fire. He further deposed that about four months back, he got settled the matter between the appellant and the complainant. Writing (Exhibit DW1/A) in that regard was executed. Mukhtiar Singh (DW2) had also toed the statement suffered by Arjan Singh (DW1).
It is the conceded position that the dhara which was set on fire was a temporary structure erected from bamboo and roof of which was of tarpaulin. The said structure was being used for tethering the cattle, thus, the same cannot be termed to be a "building" as referred to in Section 436, IPC. The "building" referred to in Section, 436, IPC, is a building which can be used as a place of worship, for human dwelling or for custody of property.
While Interpreting Section 436, IPC, Hon'ble Allahabad High Court in the case of Babulal's case (supra), held as under:-
" A structure made of straw and not of bricks and mortar may be considered a building if it has got the necessary furnishings needed for a building, such as doors, bars, etc. An ordinary double- thatched shed resting on bamboos or wooden or brick pillars having no doors etc., cannot be treated as a building within the meaning of that term used in S. 436, Penal Code. The building referred to in the Section is a building which can be used as a place of worship or as a human dwelling or as a place for the custody of property. Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 7 The word "custody" is undoubtedly different from the word "keeping" and it implies a sense of security which would be wanting in the case of a shed, which is only meant to provide shelter from sun and rain and which has no doors etc., consequently, where a thatched shed for tethering horses is destroyed by fire due to mischief the offence falls under S. 435 and not under S. 436, Penal Code."
In the matter of Jashmero Versus The State of Haryana, 1979 The Criminal Law Times 85. This court held as under:-
" that there is no doubt that prosecution has been able to show that the Chhan in question was being used for the custody of the property as the two bullocks belonging to complainant were tethered in the Chhan and the said bullocks were got burnt by fire but there is no evidence on the record to show the Chhan in question was a building. In roofed by straws or other such like material and the prosecution has failed to lead any evidence to show that the Chhan was in the form of a construction which could be termed as a building within the meaning of Section 436 of the Indian Penal Code."
In the matter of Satnam Singh's case and Shiv Parshad Singh's cases (supra), this court had also expressed the view Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 8 that setting a chappar on fire would not attract the ingredients of Section 436, IPC and the mischief committed by the accused would fall within the mischief of Section 435, IPC.
From the perusal of the facts and the evidence led on this case, it transpires that the structure was erected on walls or on bamboos and that roof was of tarpaulin, therefore, keeping in view the fact of the present case and the ratio of the judgments discussed herein above, the conviction of the appellant for the offence punishable under Section 436, IPC, cannot sustain and as such he is acquitted of the said charge. However, the ingredients of Section 435, IPC, are squarely attracted in the present case. Concededly, Section 435, IPC is the lessor offence of Section, 436, IPC, and as such the appellant can be convicted and sentenced for the lessor offence, therefore, he is held guilty for the offence punishable under Section 435, IPC. Since the conviction for the offence punishable under Section 427, IPC has not been challenged by the appellant and this court after scanning the facts has also arrived at a conclusion that the appellant had rightly been guilty under Section 427, IPC, therefore, his conviction for the said offence is also maintained.
Learned counsel for the appellant submits that the occurrence had taken place in the year 1999. The appellant was on bail during trial and pendency of the appeal but the said concession was never misused by him. The maximum sentence prescribed for the offence punishable under Section 435, IPC, is rigorous imprisonment for seven years. The maximum sentence Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 9 prescribed under Section 427, IPC is rigorous imprisonment for two years or with fine, or with both. The appellant being a first offender be released on probation.
Learned counsel for the State submitted that the appellant had committed a serious offence by putting the dhara of the complainant on fire, therefore, he does not deserve leniency in the sentence. Learned counsel for the State has produced the affidavit of Amrik Singh, Superintendent of Police, Central Jail, Amritsar, showing the period of incarceration suffered by the applicant-appellant which is taken on record. According to the affidavit of Superintendent of Police (Jail), Central Jail, Amritsar, the appellant has suffered incarceration for 03 months and 14 days of actual sentence and 03 months and 22 days including remission.
Keeping in view the totality of the facts and circumstances of the case, the substantive sentence of the appellant for both the offences, i.e. 427 and 436, IPC, is reduced to the period already undergone by him.
However, keeping in view of the fact that complainant Baldev Singh (PW1) has suffered loss to the tune of `3200/-, therefore, the appellant is directed to pay `10,000/- as compensation to Baldev Singh (PW1). The amount of compensation awarded to complainant Baldev Singh shall include the amount of fine imposed by the learned trial court. The appellant shall deposit the amount of compensation with the learned trial court within two months of passing of this judgment Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. S-1290-SB-2001 10 and in case he fails to comply with the present judgment, in that eventuality, the appellant shall undergo the sentence of rigorous imprisonment for one year for the offence punishable under Section 435, IPC and there would be no change in the sentence awarded under section 427, IPC, by the learned trial court. Both the substantive sentences would run concurrently. The amount of fine imposed under Section 436, IPC, shall be construed as fine imposed under Section 435, IPC.
If the amount of compensation is deposited by the appellant, as stipulated above, then the learned trial court would issue notice to complainant Baldev Singh (PW1) for moving an application for withdrawal of the amount of compensation in accordance with the rules.
With the above modification in the quantum of sentence, the present appeal is partly allowed.
(NARESH KUMAR SANGHI) JUDGE 19.09.2013.
Anoop Aggarwal Anoop Kumar 2013.09.25 14:09 I attest to the accuracy and integrity of this document High court Chandigarh