Rajasthan High Court - Jodhpur
Harchand Ram vs State Of Rajasthan on 28 January, 2015
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
::::
:: J U D G M E N T ::
S.B. Criminal Appeal No.810/2002
1. Harchand Ram
2. Pabu Ram
3. Jagdish
4. Kheta Ram
5. Dewa Ram
6. Kushala Ram
7. Achala Ram
8. Ramdeo Ram
Versus
State of Rajasthan
AGAINST THE JUDGMENT DATED 29.9.2002
PASSED BY ADDL. SESSIONS JUDGE (FAST
TRACK), JODHPUR IN SESSIONS CASE
NO.84/2002
DATE OF JUDGMENT :: 28/1/2015
PRESENT
HON'BEL MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Farzand Ali,for the appellants.
Mr. Deepak Choudhary, Public Prosecutor.
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BY THE COURT:
The instant criminal appeal has been filed by the appellants under Section 374(2) Cr.P.C. against the judgment dated 28.9.2002 passed by the learned Addl. Sessions Judge (Fast Track), Jodhpur (hereinafter referred to as the learned trial 2 court for short) whereby the learned trial court convicted and sentenced the accused-appellants for the following offences:
Names of Conviction and sentence accused- appellants
Harchand Ram and Conviction under Sections 148, Pabu Ram 447 and 436 IPC and sentenced to undergo one year RI for offence under Section 148, three months RI for offence under Section 447 and 7 years RI with fine of Rs.2,000/- and in default of payment of fine to further undergo three months RI under Sections 436 IPC Achala Ram, Conviction under Sections 148, Jagdsih, Kheta 447, 436/149 IPC sentenced to Ram, Deva Ram, undergo one year RI for offence Khushala Ram and under Section 148, three months Ramdeo Ram RI for offence under Section 447 and 7 years RI with fine of Rs.2,000/- and in default of payment of fine to further undergo three months RI under Sections 436/149 IPC As per the brief facts of the case in village Thob, there is an agricultural land situated in Khasra Nos. 1619 and 1624. The said land is in Khatedari of Jetha Ram S/o Sona Ram, Mooli Devi W/o Sona Ram and Khiya Ram S/o Rekha Ram. In this land the accused appellants and the complainants are having their share. In the revenue records, the area of the land bearing Khasra No.1624 is shown to be 14 bighas and 16 biswas but on the site all the Khatedars are cultivating their land as per their 3 shares. Some revenue litigation is also going on in between the parties.
On 5.7.2000 one of the co-sharer Khiya Ram lodged a report at Police Station, Osiyan against the appellants with the allegation that Pabu Ram and 9 other persons came in his filed and started cultivation but his wife asked them not to cultivate the land and due to asking, they became annoyed and beaten his wife and tried to outrage her modesty. They also set fire of Jhupa situated in Dhani. On aforesaid report, the police registered FIR no.88 dated 5.7.2000 under Section 147, 447, 323, 354, 435 and 427 IPC and after investigation, submitted a final report to the effect that no criminal case took place.
On 20.6.2001, the appellants Achala Ram and Ramdeo Ram went to their agricultural field in tractor of Bhagirath to cultivate their Bazara and Moth crop in the land of their share but co-sharer Khiya Ram again lodged a written report at Police Station, Osiyan on 21.6.2001 being FIR no.58 alleging therein that appellants and other 3 persons came to his agricultural field in the mid night with tractor and destroyed the Dhani of his field and upon asking not to destroy the Pali, they 4 threatened to kill him, then, he came back to Dhani and accused party cultivated the field in whole night and in the morning Harchand and Pabu Ram came near to his Dhani and set fire and due to fire Bad of the Dhani and Jhupa burnt alongwith some house hold articles.
Upon aforesaid report, the police registered criminal case under Section 147, 447, 504, 435 IPC and after investigation police submitted the charge-sheet against the appellants Harchand and Prabu Ram under Section s 147, 149, 447, 504 and 436 IPC and against 9 other accused persons under Sections 147 and 447 IPC in the court of Judicial Magistrate, Osiyan.
After filing charge-sheet the learned Judicial Magistrate, Osiyan committed the case for trial to the Sessions Court, Jodhpur, which was subsequently transferred to the court of Addl. Sessions Judge (Fast Tarck), Jodhpur.
The learned trial court framed the charge under Sections 148, 447, 504 and 436 IPC against the accused appellants Har chand Ram and Pabu Ram and under Sections 148, 447, 504 and 436/149 IPC against rest of the accused appellants. After framing the charge, the learned trial was commenced 5 and from prosecution side statements of 14 prosecution witnesses were recorded and in support of case 6 documents were exhibited.
After recording prosecution evidence, the statements of all the accused persons were recorded under Section 313 Cr.P.C. and all the accused stated that the witnesses are telling lie. The accused did not commit any offence, more so, the complainant having 1/3rd share in the land bearing Khasra No.1619 and 1624 but wants to grab half of share of the land, therefore, they have falsely implicated all the accused in this criminal case.
The accused Pabu Ram pleaded that on the date of incident he was on night duty at Bithwasiya Primary School in between night of 20.6.2001 and 21.6.2001 and to prove the fact a certificate was produced by him issued by the Head Master of the school and some revenue records and site inspection report prepared by the Tehsildar, Osiyan and Patwari was also filed before the learned trial court.
Thereafter, the statements of defences witnesses Pabu Ram and Bhagirath were recorded and after conclusion of trail, the learned trial court convicted the accused appellants for aforesaid 6 offences.
Being aggrieved and dissatisfied with the judgment dated 289.9.2002 passed by the learned trial court the instant appeal has been filed.
The learned counsel for the appellants vehemently argued that as per the evidence on record, no offence under Section 148, 447, 436 and 436/149 IPC is made out, so also, the finding of formation of unlawful assembly is also erroneous because in the land in question situated in Khasras Nos. 1619 and 1624 is a joint Khatedari of accused appellants as well as complainant Khiya Ram and if joint Khatedars are going to their agricultural field for cultivation then it cannot be said that they formed unlawful assembly. It is also submitted that there is no recovery of weapons, therefore, it cannot be said that accused appellants formed unlawful assembly having deadly weapon with them. With regard to finding for offence under Section 436 and 436/149 IPC it is submitted that upon perusal of statements of prosecution witnesses as a whole, it cannot be said that any offence under Section 436 IPC is made out, therefore, the judgment impugned deserves to be quashed.
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It is also argued by the learned counsel for the appellants that the learned trial court has miserably failed to appreciate the evidence in right perspective, so also, the learned trial court has erred in believing the statements of PW-5 Hari Singh and PW-6 Shiv Singh because they are resident of other village and their presence on the site of occurrence is doubtful. It is also pointed out that PW-6 Shiv Singh is mostly residing at Jodhpur and he is habitual offender which is evident from the fact that in the cross-examination he has accepted that 5-6 cases are pending against him registered at Mahamandir Police Station. It is argued by the learned counsel for the appellants that appellant are co-sharer of the land in question and there is dispute of land in between the parties for which revenue litigation was pending on the date of occurrence, therefore, it can be said that the learned trial court has committed illegality in holding appellants guilty for aforesaid offence.
According to the learned counsel for the appellants the learned trial court has discarded the defence version without any reason and appreciated the evidence. It is specifically 8 submitted by the learned counsel for the appellants that in the statement of complainant khiya Ram himself he said that the total damage was only in between Rs.2000-3000 due to fire in the Dhani, therefore, the sentence and conviction awarded to the appellants is totally unjustified and contrary to the evidence on record.
The learned counsel for the appellants lastly argued that even if it is presumed that occurrence took place then also, no offence under Section 436 and 436/149 IPC is made out for which all the appellants have been convicted, therefore, the judgment impugned may be quashed.
Per contra, the learned Public Prosecutor vehemently opposed the prayer and submits that appellants are guilty of committing offence to cause damage of Dhani while causing fire and by evidence the prosecution proved its case beyond reasonable doubt, therefore, therefore, is no strength in the argument of the learned counsel for the appellants that no offence under Section 436 or 436/149 IPC and other offence is made out.
The learned Public Prosecutor argued that no person can be allowed to fire to the residential premises of citizen and this aspect of the matter 9 has rightly been considered by the learned trial court. Further, it is argued that even if it is presumed that appellants and complainants are co- sharer in the land in question then also, the appellants cannot be permitted to disturb the law and order situation or to cause injury to the complainant party, therefore, this appeal may be dismissed.
After hearing the learned counsel for the parties I have minutely scanned the statements of prosecution witnesses, so also, the documentary evidence, so also, the statements defence witnesses and documents produced by the parties. First of all, I have perused the site plan (Ex.P/2) in which the map of site was prepared by the Investigating Officer on 21.6.2001. In the site plan the Dhanis of complainant party as well as accused party are shown in the east side of the agricultural field situated in Khasra Nos. 1619 and 1624 in which there is boundary (Bada) is shown and in the boundary four Jhupas are shown out of which at x point, out of four Jhupas, one Jhupa is shown to be burnt and some part of boundary is also shown to be burnt. Meaning thereby, as per the prosecution case and investigation, some part of the boundary 10 and out of 4 Jhupas,1 Jhupa was damaged due to fire which is alleged to be caused by appellants. I have perused the statements of PW-1 Khiya Ram. In the examination-in-chief following assertions are made, which reads as under:-
"तब य मर ढ ण क प स आय व प ब व हरचद न स णणय क म र जल कर मर सहव स ढ ण झप क प स ढ ण क ब ड म आग लग द जजसस ब ड व रहव स झप जलन लग ।"
Futher in the statements it is specifically said that "मर व प बर म क ब च खत$ ब बत रवनय म&कदम' अद लत$ म चलत ह) वह इस रजजश क क रण इनह न मर खत म' घ&सकर जबरन क शत कर 2-3 हज र रपय क न&कस न पह&च य ।"
Meaning thereby, as per the complainant himself Jhupa was turn becaue fire was caused upon Bad (boundary). Similarly, it is admitted position of the case that in the agricultural field situated in Khasra Nos. 1619 and 1624 both the complainant and accused party are having their share and on the date of incident the revenue litigation was going on for the purpose of their share. It is also emerges from the facts that before filing the present FIR, another FIR was filed by the complainant upon identical allegation bearing FIR No.88 dated 5.7.2000 in which after investigating police filed final report. Again for the identical 11 facts, the present FIR was filed by the complainant PW-1 Khiya Ram on 20.6.2001 in which allegation was levelled for fire and beading upon which after investigation, challan was filed and ultimately appellants were convicted. It is true that appellants are accpeting 1/3rd share of complainant but their allegation is that complainant wants to garb more than 1/3rd share in Khasra Nos. 1619 and 1624, therefore, this complaint was filed. I have also considered the fact that there is no medical evidence on record to prove the fact of beating. The appellants and complainant parties are close relatives and there is no dispute of their share in the land in question. This fact can be ruled out that some quarrel took place on the date of occurrence in which some damage was caused due to fire. I have perused the statements of other witnesses PW-2 Devi, PW-3 Jugatam Ram and PW-4 Kana Ram. All these witnesses except PW-1 Khiya Ram stated in their statements that they suffered loss of Rs.20,000 to 25,000/- whereas the complainant himself stated in his statement that he has suffered loss of Rs.2,000/ to 3,000/- due to fire.
Upon perusal of the statements of all the prosecution witnesses I am of the opinion that 12 prosecution has proved the case that in between the night of 20.6.2001 to 21.6.2001 some quarrel took place between the parties. but whether offence under Section 436 IPC is made out or not upon the evidence adduced by the prosecution, I have perused the Sections 435 and 436 of the IPC, which read as under: -
"435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees -- Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
436. Mischief by fire or explosive substance with intent to destroy house, etc.-- 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."
[Emphasis supplied] 13 Upon perusal of above Section 436 it is abundantly clear that whoever commit mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby causes, 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. Applying above Section upon evidence of the present case it emerges that the quarrel took place in the agricultural land of Khasra No.1619 and 1624 for which partition suit was pending and all the accused and complainant party were co-sharer of the land in question and they were cultivating their share of land. The (complainant) co-sharer Khiya Ram wants to cultivate more land than his share so he started interference in the possession of co-tenant Harchand Ram and Pabu Ram. The accused Harchand Ram, Achala Ram, Jagdish and Pabu Ram filed a suit for declaration, partition and injunction in the court of Assistant Collector, Headquarter,Jodhpur alongwith an application for temporary injunction. Upon application filed for temporary injunction, an order was passed on 9.8.2000 whereby direction was isused to maintain the status quo regarding 14 possession and on the date on which the occurrence took place, the order was in existence. The aforesaid fact clearly reveal that both the parties were having their share in the land in question where occurrence took place. The only allegation is that out of 4 Jhupa of Khiya Ram, one Jhupa was burnt due to fire set by the accused appellants in the temporary boundary. The question arose whether that Jhupa can be treated to be building so as to convict the applications for offence under Section 436 IPC. The Jhupa which is said to have been burnt by the fire alleged to have been set by the accused appellant was not used for residence and as per the complainant due to fire of Jhupa the total property of Rs.2,000-3,000/- was damaged, but no reliable and trustworthy evidence of assessment of damage is produced to accept the cost of loss. Undoubtedly, the Section 436 IPC contemplates the offence of mischief by fire with intention to cause destruction of any building, which is ordinarily used as a place of worship or a human dwelling or as a placed for custody of property, but all these 3 ingredients are absent in this case. In view of the above discussion, I am of the opinion that conviction against the accused appellants for aforesaid offence under Section 436 IPC is not made out, but fact remains that as per evidence an occurrence of fire took place in which out of 4 Jhupas mentioned in site plan 15 Ex.P/2 in the north eastern side upon agricultural land which was in possession, one Jhupa was burnt and that Jhupa was not used for worship, therefore, after appreciation of evidence, the conviction and punishment for offenceus 436 IPC is not sustainable in law. Similarly, when the complainant and accused parties are co-sharer in the agricultural field in question then offence under Section 447 IPC is also not made out because both complainant party and accused party were cultivating the land as co- sharer in which they were in possession and there is no allegation that appellants accused intervened in the Dhani, therefore, even, if prosecution story is accepted, offence does not trave beyond Section 435 IPC.
In view of the above discussion, this criminal appeal is partly allowed and the conviction of the accused appellant Harchand Ram and Pabu Ram for offence under Sections 148, 447 and 436 IPC and conviction for the accused appellants Achala Ram, Jagdish, Kheta Ram, Deva Ram, Khushala Ram and Ramdeo Ram for offence under Sections 148, 447 and 436/149 are hereby quashed and the conviction of Harchand Ram and Pabu Ram is hereby converted into offence under Section 435 IPC and conviction of Achala Ram, Jagdish, Kheta Ram, Deva Ram, Khushala Ram and Ramdeo Ram is converted into offence under Section 435/149 IPC. The appellants are facing criminal proceedings since the year 2001, therefore, after 13 years, 16 it is not proper to sent them behind the bars. Hence, all the accused appellants are hereby punished with the sentence already undergone for offence under Section 435 and 435/149 IPC respectively. However, a fine of Rs.15,000/- is imposed on each of the accused appellants and out of the total amount of fine i.e.,Rs.1,20,000/- , an amount of Rs.80,000/- be paid to the complainant.
(GOPAL KRISHAN VYAS),J.
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