Criminal Appeal No. 1917-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ... Criminal Appeal No. 1917-SB of 2002 Date of decision: May16, 2008 Chander ... Appellant versus State of Haryana ... Respondent ... Present: Mr. Avtar Singh Parmar, Advocate (amicus curiae) for the appellant. Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL .. JUDGMENT: HARBANS LAL,J This appeal is directed against the judgment/order of sentence dated 18.10.2002 passed by the learned Additional Sessions Judge, Panipat, whereby he convicted and sentenced Chander accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- and in default of payment of the same, to further undergo rigorous imprisonment for two months under Section 436 of I.P.C. Succinctly put, the facts of the prosecution case are that on 13.1.1997, Prem Singh, the then SI/SHO Israna happened to be present at Bust Stand of Village Kalkha. Meanwhile, Balbir son of Hari Chand of Village Luhari moved an application before him containing the allegations Criminal Appeal No. 1917-SB of 2002 -2- that Chander, whom the Gram Panchayat had leased out Chhappar (thatched roof ) along with shop, has set afire the Chhappar on 12.1.1997 at 23.00 P.M. by sprinkling kerosene oil in the presence of Om Parkash Lamberdar, and Ram Dhari Pandit and Prithvi Singh, residents of village Luhari. On the basis of this application, the case was registered. The aforesaid SHO seized the ash and some coal from the place of occurrence, prepared the rough site plan and got the scene of crime photographed. The accused was arrested. After completion of investigation, the charge sheet was laid in the court of learned Illaqa Magistrate, who committed the case to the Court of Sessions for trial. On commitment, the accused was charged under Section 436 of IPC to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined as many as 11 witnesses. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He examined Hans Raj DW-1 in his defence. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard the learned counsel for the parties besides perusing the record with due care and circumspection. Mr. Parmar, Advocate appearing as amicus curiae on behalf of the appellant, stressing his every nerve urged with great eloquence that as Criminal Appeal No. 1917-SB of 2002 -3- per allegations of the prosecution, the Chappar which was leased out by the Gram Panchayat to the accused, was set ablaze by him by sprinkling kerosene oil but the record is quite barren to show if the alleged Chhappar was an enclosure and in the absence of such evidence, the case of the prosecution does not fall within the ambit of Section 436 of IPC. To buttess this stance, he has sought to place abundant reliance on the observations rendered in re: Raj Singh v. State of Haryana, 2003 (2) Recent Criminal Reports (Criminal) 697 and Babulal and another v. State, A.I.R. (39) 1952 Allahabad 146. Section 436 of IPC reads in the following terms :- “ 436. Mischief by fire or explosive substance 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.” Hukam Chand, PW-5 has solemnly affirmed that “ I have brought the original receipts which have been issued in favour of the accused. The photo copy of the same is Exh. PD. I have also brought the Register of Lease showing that the shop was given to the accused. Shop No.2 was leased in favour of the accused. The photo copy of the Register of Lease is Exh. PE.” On appraising this evidence, it transpires that two shops owned by the Gram Panchayat were leased out in favour of the accused. Criminal Appeal No. 1917-SB of 2002 -4- This witness has nowhere stated that “Chhappar” which was allegedly set afire by the accused, was also appurtenant to such shops. Balbir Singh PW-6 Sarpanch of Village Luhari has stated that “ on 12.1.1997 Ram Dhari and Om Parkash came to my residence at 11.00 P.M. and they disclosed that Chander accused present in Court had set on fire, the shops of the Panchayat after sprinkling kerosene oil. Obviously, this version is at variance with the allegations in the FIR for the reason that as per prosecution version only “Chhappar” was set afire, whereas according to this witness, the shops were set ablaze. The most crucial question calling for determination herein is as to whether “Chhappar” falls within the mischief of Section 436 ibid. Om Parkash PW-9, the alleged eye witness has testified “that in front of the shops, there was a Chhappar. After taking my meals I was going towards my field. I had seen Chander was running towards the house of his brother and then he brought a can of kerosene oil and sprinkled the same on the shop which was in front of the shop and then he set the same on fire.” There is no evidence showing that this Chhappar was an enclosure. This Chhappar would have fallen within the purview of Section 436 of IPC if the prosecution had adduced evidence to the effect that on the land beneath the Chhappar, enclosure had been erected and the same was being used for the custody of the property. At this juncture, learned State counsel pointed out that it is in the evidence of Pirthi Singh PW-10 that in his presence Chander was sprinkling kerosene oil on Chhappar and Takht. He has persuaded the Court to interpret the land beneath the Chhappar to take it as a place for storing Takht i.e. the property belonging to the Gram Panchayat. But to the utter dismay of the prosecution, there is no evidence to the effect that the alleged Criminal Appeal No. 1917-SB of 2002 -5- Takht (wooden platform) did belong to the Gram Panchayat or that the land beneath the Chhappar was often used for storing the Takht. Firstly, there is no evidence to the effect that Takht was placed there and secondly, there is no evidence to the effect that said Takht was also given by the Gram Panchayat to the accused. This witness Pirthi Singh lets the cat out of the bag by deposing under the stress of cross-examination that Takht was never handed over by the Gram Panchayat to Chander in his presence. In his next breath, he spoke “ I do not know to whom Takht which was lying in the Chhappar belonged ? I do not know whether Chhappar was rented out by the Gram Panchayat or not. ” Thus, apparently this witness demolishes the contention raised by learned State counsel. It is in the further cross- examination of Pirthi Singh (sic) that “ I had seen the Chhappar. It was open from three sides and one side was on the wall of the shop. This Chhappar was prepared with the help of wood and thatches. ” Needless to say, the prosecution has not established that the Chhappar or the Takht were the ownership of the Gram Panchayat. More to the point, obviously as per the above extracted evidence, it was open from three sides. 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: Babulal and another (supra), it has been ruled as under :- Criminal Appeal No. 1917-SB of 2002 -6- “ 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. 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. ” The prosecution case fails on two counts: Primarily, that if at all, the accused was to put the “Chhappar” on fire, he in the normal course of human conduct would have done so in the absence of any one. He would have eschewed to create evidence against him. To crown it all, no motive has been ascribed to the accused for resorting to such an activity. Secondarily, the alleged “Chhappar” as emanates from the preceding discussion, do not attract the implications of Section 436 or 435 of IPC. Criminal Appeal No. 1917-SB of 2002 -7- In the ultimate analysis, this appeal is accepted, setting aside the impugned judgment. Sequelly, the accused/appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE May 16, 2008 RS Whether to be referred to the Reporter ? Yes/No