Punjab-Haryana High Court
Satnam Singh And Others vs State Of Punjab on 12 January, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 529-SB of 2002 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 529-SB of 2002
Date of Decision: 12.1.2011
Satnam Singh and Others
...Appellants
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Sant Pal Singh Sidhu, Advocate
for the appellants.
Mr. J.S. Bhullar, Assistant Advocate
General, Punjab, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
In the present appeal, six appellants namely Satnam Singh, Balwant Singh, Bhagwan Singh, Shanker Singh, Phuman Singh and Jarnail Singh, along with Anwar Masih, who was declared as a Proclaimed Offender, were tried by the Court of Additional Sessions Judge, Ferozepur, and vide its impugned judgment dated 5.3.2002, held them guilty for the offence under Sections 148, 436, 440, 427 and 506 IPC. After having held the appellants guilty for the above said offences, vide separate order dated 7.3.2002, they were sentenced as under:-
Sr. No. Section Sentence awarded
1. All the accused To undergo rigorous
under Section imprisonment for a period of
148 IPC six months.
Criminal Appeal No. 529-SB of 2002 2
Sr. No. Section Sentence awarded
2. All the accused To undergo rigorous
under Section imprisonment for a period of
436 IPC. three years and to pay a fine
of ` 500 each, in default
whereof to further undergo
rigorous imprisonment for a
period of three months.
3. All the accused To undergo rigorous
under Section imprisonment for a period of
440 IPC one and a half years and to
pay a fine of ` 200 each, in
default whereof to further
undergo rigorous
imprisonment for a period of
two months.
4. All the accused To undergo rigorous
under Section imprisonment for a period of
427 IPC six months.
5. All the accused To undergo rigorous
under Section imprisonment for a period of
506 IPC six months.
All the sentences were ordered to run concurrently. This appeal is directed by the appellants against the judgment of conviction dated 5.3.2002 and order of sentence dated 7.3.2002, pronounced by the trial Court. The appellants along with Anwar Masih, who was declared as a Proclaimed Offender, were nominated as accused in case FIR No. 334 dated 14.11.1995, registered at Police Station Sadar, Ferozepur, under Sections 148, 436, 440, 427, 506 and 149 IPC. The prosecution version was divulged by PW.2 Raj Kumar, in his statement Ex.P2, which was recorded by PW.8 Tara Singh, Assistant Sub Inspector. It was stated by Raj Kumar that he is a resident of village Alli Ke and was doing agricultural work. He along with PW.4 Basara Singh had sown barseen crop in the fields. He further stated that they had erected a Chhappar (thatched shed made up of straw and bamboo) in the fields. Earlier to this, another Chhappar was constructed Criminal Appeal No. 529-SB of 2002 3 which was washed away by floods. On 12.11.1995, Bahadur Singh along with some other persons came to take possession of the land and when the resistance was made, they had caused injuries to Basara Singh, who was admitted in Civil Hospital, Ferozepur. On13.11.1995, the complainant along with Buta Singh came to irrigate his fields. At about 2/2.30 P.M., Phuman Singh armed with Takua, Balwant Singh armed with Kirpan, Jaila Singh armed with Saila, Bhagwan Singh armed with Kappa, Satnam Singh armed with Gandasa, Shanker Singh armed with Sota and Anwar Masih alias Bhilli armed with Gandasa, came at the spot, while raising lalkaras. On seeing the accused, complainant-PW.2 Raj Kumar and PW.3 Buta Singh ran away from the spot. All the accused came in the field near the Chhappar. They had put the Chhappar on fire. It was further stated that by putting the Chhappar on fire, the cot and the bedding lying therein along with saplings of chillies were also destroyed.
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted.
The appellants were charged by the Court of Additional Sessions Judge, Ferozepur, for constituting unlawful assembly, under Section 148 IPC. The second charge stated that with the common object of the unlawful assembly, the appellants had caused fire to the house of Raj Kumar, which was being used as human dwelling and thus committed an offence punishable under Section 436 read with section 149 IPC. The third charge stated that since the accused came armed with preparation for causing hurt or wrongful restraint to Raj Kumar, therefore, they also committed an offence punishable under Section 440 Criminal Appeal No. 529-SB of 2002 4 read with Section 149 IPC. For having caused loss to the property of Raj Kumar for more than ` 50, and for having committed an offence with criminal intimidation, they were charged with the offence punishable under Section 427 read with Section 149 IPC and Section 506 read with Section 149 IPC. They pleaded not guilty and claimed trial.
PW.1 Dr. Ramesh Kumar, on 12.11.1995 at about 12.15 P.M., had conducted medicolegal examination of Basara Singh. This Court need not to notice the injuries as the same pertained to the occurrence, one day prior to the present occurrence, for which, according to learned counsel for the appellants, a separate FIR was registered and the accused were tried thereunder.
Raj Kumar appeared as PW.2. He stated that on seeing the accused, he along with Buta Singh ran away from the spot. The accused had put the Chhappar on fire, wherein one cot, one bedding and saplings of chillies were lying, were also damaged. Buta Singh, who was present along with PW.2 Raj Kumar, was examined as PW.3. He supported the case of prosecution. PW.4 Basara Singh stated that the accused had put the hut, erected by him in the fields, on fire and thus, he suffered a loss of ` 8,500. PW.5 Deepak Kumar, Reader, proved copy of the order dated 29.10.1992 Ex.P3, passed by the Court of Naib Tehsildar, Ferozepur. PW.6 Jaspal Singh, Ahlmad in the office of Sub Divisional Magistrate (Civil), Ferozepur, produced the file pertaining to the appeal, filed against the order Ex.P3. PW.7 Rattan Singh, Assistant Sub Inspector/Station House Officer, Police Station City, Fazilka, on receipt of the statement Ex.P2, made by PW.2 Raj Kumar, had registered formal FIR Ex.P4. PW.8 Tara Singh, Sub Inspector, had Criminal Appeal No. 529-SB of 2002 5 investigated the case. PW.9 Surinder Kumar had taken the photographs of the spot Ex.P9 to Ex.P13 and proved the negatives thereof Ex.P14 to Ex.P19.
Thereafter, the statements of accused, under Section 313 Cr.P.C., were recorded wherein they denied all the incriminating circumstances put to them. However, they did not lead any evidence in defence.
Mr. Sant Pal Singh Sidhu, Advocate, appearing for the appellants, has not disputed the presence of PW.2 Raj Kumar and PW.3 Buta Singh. The possession of the complainant party over the land in dispute has also not been challenged. Learned counsel for the appellants submitted that as per the prosecution case, the accused had constructed a chhappar. He further submitted that this fact is evident that the chhappar was of temporary in nature as the prosecution witnesses stated that earlier the floods came and the chhappar was washed away. Thus, according to learned counsel for the appellants, no offence is made out under Section 436 IPC.
I have given my thoughtful consideration to this argument. From the evidence of witnesses, it emerges that beneath the chhappar, one cot and bedding were lying along with the saplings of chillies. Thus, the prosecution case is that when the chhappar was put on fire, one cot and bedding along with the saplings of chillies were also burnt. Nowhere it has surfaced in the testimonies of PW.2 Raj Kumar, PW.3 Buta Singh and PW.9 Surinder Kumar, Photographer that any household article was also stored or lying in the chhappar or had been damaged. Whether the chhappar can be considered as a building for human dwelling falling Criminal Appeal No. 529-SB of 2002 6 within the ambit of Section 436 IPC or not was considered by the two Single Benches of this Court in Raj Singh v. State of Haryana 2003(2) Recent Criminal Reports 697 and Chander v. State of Haryana 2008 (4) Recent Criminal Reports 716, wherein a reliance was placed upon Babulal v. State AIR (39) 1952 Allahabad 146. In Chander's case (supra), it was observed as under:-
"9...That being so, by no stretch of speculation it can be enveloped within the definition of an enclosure. Sequelly, this "Chhappar" is not covered by the semantics of section 436 ibid. In re: Raj Singh (supra), it has been laid down by this Court that the "Chhappar" does not come within the definition of 'building'. No mischief is committed if a person causes loss to his own property. Here in this case, as noted supra, the prosecution has not claimed the alleged Chhappar to be the ownership of Gram Panchayat. Be that it was raised by the accused for the facility of his customers. Further, in re" Babu Lal and another (supra), it has been ruled 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 Criminal Appeal No. 529-SB of 2002 7 etc., cannot be treated as a 'building' within the meaning of that term used in Section 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. 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 Section 435 and not under Section 436, Penal Code..."
I have also perused the photographs Ex.P9 to P13, from which only burnt straw is discernible. Thus, it cannot be said that the accused had put any place on fire, used for human dwelling or the place for custody of the property. Thus, the offence will fall under Section 435 IPC. In the present case, the occurrence had taken place on 13.11.1995 at about 2/2.30 P.M. PW.2 Raj Kumar had made a statement Ex.P2 to the police on 14.11.1995 at about 1.30 P.M. The case was registered on 14.11.1995. Thus, there is a delay of about one day in lodging the report. It is a case of the prosecution that a day earlier to the present Criminal Appeal No. 529-SB of 2002 8 occurrence, the accused had caused injuries to PW.4 Basara Singh, who was medicolegally examined by PW.1 Dr. Ramesh Kumar on 12.11.1995. Thereafter, on 13.11.1995, the accused, who were armed with weapons, had caused no injury to any witness. It is the case of prosecution that PW.2 Raj Kumar and PW.3 Buta Singh ran away from the spot. Thus, it cannot be ruled out that due to consultations and deliberations, delay was used to concoct this part of the prosecution case. It cannot be comprehend that if seven accused came, they left two witnesses to escape and they had not caused hurt to anyone. On the touchstone of the probabilities, the prosecution version is discounted.
Hence, this Court is of the view that it will not be safe to uphold the conviction of the appellants for the offence under Section 440 IPC. Having held the appellants guilty for the offence under Sections 148 and 435 read with Section 149 IPC, this Court has to consider as to whether the appellants are to be sentenced or they are to be provided an opportunity to reform themselves and lead a path of rectitude. The occurrence, in the present case, had taken place in November 1995. Thus, the occurrence is about more than 15 years old. It is stated that the appellants are the first offenders and even after the present occurrence, they have not committed any other offence.
Considering these circumstances, the appellants are ordered to be released on probation of good conduct and be of good behaviour for a period of one year, subject to their furnishing personal bonds to the satisfaction of the Chief Judicial Magistrate, Ferozepur. The appellants shall undertake to appear and receive the sentence before the Court as and when called upon to do so. However, the cost of litigation is Criminal Appeal No. 529-SB of 2002 9 assessed at ` 5,000/- qua each appellant. The appellants shall deposit the bonds and the cost of litigation before the concerned Court within a period of three months from the date of receipt of a certified copy of this order.
With the observations made above, the present appeal is disposed of.
(Kanwaljit Singh Ahluwalia) Judge January 12, 2011 "DK"