1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT PREM PRASAD BOHRA & ORS. V/S STATE OF RAJ. S.B. CRIMINAL APPEAL NO. 767/2008 Date of Judgment : 16.11.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. R.S.Chundawat for the appellant Mrs. Chandra Lekha– Public Prosecutor BY THE COURT: This is a challenge made by the appellants Prem Prasad Bohra S/o Kan Mal, Arvind Bagada S/o Jagdish Prasad, Sanjay Kumar S/o Ashok Kumar and Kamal Bagada S/o Nand Lal against the judgment dated 15.09.2008 passed by the learned Addl. Sessions Judge (Fast Track), Parbatsar in Sessions Case No.34/2007 (21/2007), by which the learned trial court found the accused appellants guilty for offence under Section 435 of the IPC and further extended the benefit of Section 4 (1) of the Probation of Offenders Act, with the condition to file the bail bonds for Rs.3,000/- to keep the peace in future and not to commit any offence and further the learned trial court ordered that each of the accused appellant shall pay Rs.3,000/- to complainant under Section 5 of the Probation of the Offenders Act and Rs.1,000/- as Prosecution Cost. Thus each of the accused appellant has to pay Rs.4,000/-. 2 Aggrieved by the order of conviction and order made under Section 5 of the Probation of Offenders Act and to pay cost of Rs.1,000/- by each of the appellant to the complainant, this appeal has been preferred. The prosecution story is that on dated 20.06.2004, complainant Chaina Ram Choudhary has lodged a F.I.R. at Police Station Parbatsar alleging that he is the Secretary in Adharsh Vidhya Mandir Society, Parbatsar and he is living in the same premises alongwith his family members. On that day at about 7.40 a.m. he came from bus stand to school building then he saw that Lala Bagada, Sanjay Sharma, Ajay Tapadia, Mukesh Bagada, Rakesh Bagada, Arvind Bagada, Prem Prakash Shrimali, Raju Shrimali, Sanjay Bagada, Kamal Bagada, Vikash Bagada and 4-5 other persons to whom he did not know, entered the school premises and broken the door and thrown out the utensils and they burnt two huts which is adjoining to the school building as the same were used for keeping fodder. The fire was lit by Kamal Bagada and Vikash Bagada. They also poured kerosene over the fodder and thus both the huts were burnt. On the basis of above report, FIR No.102/2004 was registered at P.S. Parbatsar and investigation commenced. During the course of investigation, statements of witnesses were recorded and after investigation, charge sheet was filed against the four accused appellants under Section 436 of the IPC. Learned trial court charged all the four accused appellants for the offence under Section 436 IPC. The prosecution 3 examined as many as ten witnesses, incriminating evidence adduced during the course of trial against the appellants were put to them for explanation under Section 313, Cr.P.C. and accused appellants examined as many as 3 witnesses i.e. DW 1 to DW 3 in their defence. After hearing both the parties, the learned trial court held the accused appellants guilty under Section 435 of the IPC and by extending the benefit of Section 4 of the Probation of Offenders Act ordered under Section 5 to pay the compensation as well as prosecution cost as indicated above. Learned counsel for the accused appellants contended that the complainant himself is in illegal possession of the property and thus no offence is made out for offence under Section 435 of the IPC. Further counsel for the appellant argued that learned trial court has erred in appreciating the evidence. Per contra learned Public Prosecutor defended the judgment. I have perused the record and evidence adduced by the prosecution. First Information Report was lodged by the complainant just after the knowledge of the offence without any further delay. The deposition of eye-witnesses remained unshattered. Learned trial court appreciated the evidence of each of the prosecution witness in detail and the conclusion drawn by the learned trial court appears to be correct and, therefore, it requires to be affirmed. Therefore , the order of conviction passed by the learned trial court is affirmed. The accused appellants were charged for offence under Section 436 of 4 the IPC whereas they were convicted for offence under Section 435 of the IPC. Looking to the facts and circumstances of the case, it would be proper to reduce the amount of compensation awarded under Section 5 of the Probation of Offenders Act alongwith prosecution cost as awarded by the learned trial court. Accordingly, the order dated 15.09.2004 passed by the learned trial court under Section 5 of the Probation of Offenders Act is modified to the amount of Rs.1,000/- as compensation to be paid by each of the accused appellant to the complainant. Learned trial court ordered to pay the prosecution cost of Rs.1,000/- by each of the accused appellant to the complainant whereas it is modified to the amount of Rs.500/- which is to be deposited by each of the accused appellant in State Exchequer. Thus, each accused appellant has to pay Rs.1,500/- in total. Rs.1,000/- as compensation to be paid under Section 5 of the Probation of Offenders act to the complainant and Rs.500/- as prosecution cost to be deposited in State Exchequer. Thus, the appeal filed by the accused appellants is partly- allowed as indicated above. [KAILASH CHANDRA JOSHI], J. MAMTA