SURINDER SINGH, J:
The appellant was charge-sheeted and tried alongwith his brothers, for the offences punishable under Sections 436, 427, 429, 323 and 506 of the Indian Penal Code. Except him, others were acquitted, however the appellant was convicted and sentenced for offences punishable under Sections 436, 427 and 506 of the Indian Penal Code as follow:-
Offence Under Sections Sentence
436 I.P.C Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 10,000/-. In default of payment of fine, to further undergo imprisonment for one year.
427 I.P.C Rigorous Imprisonment for a period of one year.
506 I.P.C Rigorous Imprisonment for a period of one year.
All the sentences were ordered to run concurrently. The period of detention undergone by the appellant during the investigation and trial of the case was ordered to be set off under Section 428 of the Code of Criminal Procedure, hence the present appeal.
2. Precisely, the case of the prosecution, as emerges from the evidence on record, can be stated thus. In the year 2005, PW11 Balvinder Kumar was a Foreman in the firm “M/s Ravel Singh and Company”, engaged for dry mud cordrilling. The Company had raised some tents on the ground nearby work-site.
(ii) On 5.5.2001, at about 6.15 p.m, PW11 aforesaid was sitting alongwith Mohan Singh outside the tent towards a shop. In the meantime, appellant came there armed with Darat in his hand. He threatened to set ablaze tents including the tented Store of the Company and also threatened to cut their employees in pieces. Two barrels of Mobile/Hydraulic Oil and two of diesel were lying near the tent. Out of one open barrel of diesel, the appellant took out diesel and sprinkled around tents and store, some diesel was taken by him in Jeri cane and kept at few steps away from tents. Thereafter, he lit the match-stick and set the tents on fire. PW11 Balvinder Kumar ran towards the work-site where other employees of the Company were undertaking work. He informed them about the incident. On his return, he noticed that the tents have turned into ashes and contents of the drums were also burning. The appellant was present there. He threatened him with dire consequences, in case he would restrain him from such act. The aforesaid incident was witnessed by PW12 Sardara Singh and Ashwani Kumar (not examined). The appellant also alleged to have sprinkled the diesel on the office of NHPC and set it on fire thereafter proceeded towards tent where a Mule was tied and also set it on fire. Consequently, the Mule, which was inside the tent got burnt. One Gurkha had tried to over-power the appellant, but appellant picked up a stone and hit on his head with the result, Gurkha became unconscious and was immediately removed to the hospital by the employees of the Company in the Company vehicle. Later the appellant was over-powered by PW12 Sardara Singh, Ashwani Kumar with the aid of some persons. In the meantime, brothers of the appellant came there and picked up an altercation with Sardara Singh and Ashwani Kumar, got him freed and took him along.
(iii) The matter was reported to police. Statement Ext.PW11.A of PW11 Balvinder Kumar was recorded under Section 154 of the Code of Criminal procedure which ultimately culminated into present FIR.
(iv) Police visited the spot and prepared the site plan. The appellant was arrested. He made disclosure statement Ext.PW13.A that the Darat was thrown by him in Parvati river, which could be got recovered by him. Thereafter, he led the police to the spot, but it could not be recovered. To this effect, a memo Ext.PW13.B was prepared. Police had also taken photographs Exts.PW14.B to D of the spot and also took into possession some burnt material, which was sealed on the spot and sent for the chemical examination. Report is Ext.PW14.K.
(v) PW14 Inspector Khazana Ram got Gurkha Tek Bahadur medically examined from PW3 Dr. Ashok Rana. He noticed simple injuries on his person and issued MLC Ext.PW3.A. Post-mortem of the charred Mule was conducted on the spot by PW4 Dr. Dinesh Kumar. He issued postmortem report Ext.PW4.B
3. After completing investigation, the challan was presented in the Court for the trial of the appellant and his brothers. They were accordingly charge-sheeted and put on trial and at the end of trial, co-accused were acquitted, however the appellant was convicted and sentenced, as aforesaid, hence the present appeal.
4. Shri B.P Sharma, learned Senior Advocate, duly assisted by Shri Arun Kumar, Advocate vehemently argued that no case is made out against the appellant and the learned trial Court wrongly appreciated the evidence of the prosecution and further, at the worst it was a case falling under Section 435 of the Indian Penal Code but not under Section 436 of the Indian Penal Code, since the “tent” does not fall within the definition of a building. He also argued that the appellant is a rustic villager and in case of conviction, he may be given the benefit of the sentence already undergone.
5. Contra, Shri P.M Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence.
6. I have given my thoughtful consideration to the rival contentions of the parties and carefully reappraised the evidence on record.
7. National Hydro Power Corporation (NHPC) had site office, kitchen etc. in tent at village Barsani. In the year 2001, M/s Ravel Singh and Company had undertaken the work of drilling, boring and testing of the dam at Barsani. They were also having a transit camp, kitchen and store in the tent nearby.
8. PW11 Balvinder Kumar testified the above facts as alleged, further stated that the appellant was in rage and proclaimed that he would set the tent of the Company on fire, thereafter he took diesel from the barrels with the help of a bucket and also put another tent on fire where a Mule was tethered. The tent reduced to ashes and the Mule died on account of burns. After informing workers on return, he also found that the tents of the Company had reduced into ashes. Tek Bahadur, Gurkha though had tried to over-power the appellant, but he caused injury with a stone to him. Later he was over-powered by Sardara Singh and Ashwani Kumar, but he was got relieved by his brothers.
9. In cross-examination, nothing material could be extracted, rather he stated that he had no enmity with the accused and even they could not prevail upon him from causing fire. He was having a sickle in his hand with which he was terrorizing them. Further according to him, about 50 persons had gathered on the spot seeing the tents on fire.
10. The above version has been corroborated by PW12 Sardara Singh and PW13 Mohan Singh. In cross-examination, PW12 Sardara Singh admitted the suggestion that “M/s Ravel Singh and Company” has suffered a huge loss caused due to fire. He stated that he had seen the incident from a distance of about 150 meters from the store where he was operating a machine. He also stated that he did not know about the mental disorder of the appellant on the day of occurrence. Even PW13 Mohan Singh denied that he was tutored to make a particular statement against the appellant, he also categorically denied that the workers of “M/s Ravel Singh and Company” had beaten up the appellant, with a view to save themselves, a false case was foisted upon the appellant and his brothers.
11. PW1 Ishwar Dass was on deputation with NHPC, was posted in village Barsheni. He stated that he was informed by the employees of “M/s Ravel Singh and Company” about the incident. He further stated that there was a quarrel and Tek Bahadur sustained injury and removed to the hospital. The matter was reported to the police and also to the Assistant Manager of the Company, but could not tell the names of the persons involved in the quarrel.
12. PW2 Dhyan Singh stated that he had two Mules, one of which was ill and tied in the tent. In the evening, when he returned home, he saw the said tent on fire which was caused by the accused. His Mule died of burns.
13. PW4 Dr. Dinesh Kumar Veterinary Officer conducted the postmortem of Mule and certified that the Mule had died because of extensive burning. The report is Ext.PW4.B. His opinion was not disputed at all.
14. PW3 Dr. Ashok Rana had examined Tek Bahadur and noticed lacerated wound over the scalp and issued MLC Ext.PW3.A.
15. PW8 Satish Kumar a Dhaba owner stated that he was present in his Dhaba at the relevant time and saw that the appellant had put tents of “M/s Ravel Singh and Company” on fire, where some persons of the Company used to reside. Adjoining to that, there was a generator and office of NHPC, which also got damaged. He could not state about the mental capacity of the appellant, but categorically stated that it was the appellant, who put the tents on fire.
16. PW10 Yadvinder Singh, Incharge of “M/s Ravel Singh and Company” on coming to know about the incident rushed to the spot and found that the tents of the office were already burnt and diesel drums were lying scattered. He further stated that the appellant was present on the spot quarreling/scuffling with Gurkha Tek Bahadur. He had suffered an injury on his forehead. He removed Tek Bahadur for treatment to the hospital. In cross-examination, he stated that the site was totally in tents and there was a Dhaba of Satish Kumar witness near their office. He also admitted that there were tents of other persons nearby the office of NHPC and their Company, but denied that the Mule was not burnt because of fire in tent. He denied that when he reached the spot, appellant was not having any Darat in his hand. He also stated that Balvinder Kumar and Mohan Singh witnesses aforesaid had requested the appellant not to spread the oil on fire, but he did not pay any heed to it, rather pelted stones towards them. He was confronted with his statement recorded under Section 161 Cr.P.C and denied that Tek Bahadur did not sustain any injury on his forehead. He admitted the suggestion that the injury on his forehead was caused by the appellant, but did not see it himself. He further stated that he saw the appellant for the first time on the spot, earlier he was not known to him. On the following day, he also noticed some injury on the person of appellant. He admitted that “M/s Ravel Singh and Company” had suffered a huge loss because of fire incident.
17. PW14 Inspector Khazana Ram had visited the spot and confirmed the fact that the Mule had died in the said fire incident, he had prepared site plan and took photographs. He stated that though the disclosure statement of the appellant was recorded, but the recovery of Darat could not be effected as it was stated to have been thrown in the river.
18. In his statement under Section 313 of the Code of Criminal Procedure, the appellant did not say anything about his mental condition, but explained that the employees of the Company had been doing blasting without any alarm, because of such blasting, his mother had sustained fracture in her arm, thus he visited the office of the Company to tell them not to do blasting in such a manner, but they got annoyed and gave beatings to him and broke his two teeth. Thereafter they set their tents on fire and implicated him in a false case to save their own skin.
19. The stand taken by the appellant with respect to breaking of his teeth and causing injury because of blasting to his mother were not suggested to any of the witnesses including the Investigating Officer. The stand taken at the fag end of trial is an afterthought. Even there is nothing on record to probablise his defence. Therefore, it was rightly rejected.
20. However, on the critical examination of the aforesaid evidence, it is manifest that “M/s Ravel Singh and Company” and also the NHPC had their tents on the site near the Dhaba of PW8 Satish Kumar in village Barsani. There was a make-shift office in one of the tents and Mule was also tethered by PW2 Dhyan Singh in another tent which also got burnt in the fire caused by the appellant, may be because of some annoyance. Now the question is that whether the act of the appellant setting the tents on fire would be an offence under 436 of the Indian Penal Code.
21. Section 436 of the Indian Penal Code reads as under:
“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.”
22. To prove its case, prosecution must prove all the ingredients of Section 426 of the Indian Penal Code and also
(i) that the property injured consisted of a building; and
(ii) that the such building was ordinarily used as a place of worship, or as a human dwelling, or as a place for the custody of property.
23. Now the question is whether the “tent” falls within the definition of “building”, for the purpose of the above section.
24. The dominant intention of the legislature in framing Section 436 I.P.C was to give protection to those buildings which are used as human dwelling or places where the properties are stored for custody. The ‘kachcha’‘Jhumpa’ with a thatched roof closed by doors and shutters in which the grain and other articles were stored comes within the meaning of “building” given in this Section and can be very well termed to be a place for the custody of property out of necessity.
25. 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 Section aforesaid. 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 could 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 tent or thatched shed for tethering animals is destroyed by fire due to mischief the offence would fall under Section 435 and not under Section 436 of the Indian Penal Code.
26. In the case in hand, though there is only a fleeting reference that 2-3 persons of the Company used to reside in the tents, but there is no cogent and clinching evidence that the tents were used as a human dwelling by the workers of the Company or that the Company had stored their articles in the tent having doors etc.
27. In the background facts, the make-shift office in a tent which got burnt would not fall within the definition of a building in absence of any evidence furnished that it had doors and bars etc. or for the custody of the property. Keeping of the Mule being ill by PW2 Dhyan Singh in the tent would also not amount custody of the property. Thus, the prosecution has failed to prove by leading cogent evidence that the “tents” were either used as a place of worship or human dwelling or a place of custody of property.
28. After scanning the entire evidence, I find that the appellant had criminally intimidated the workers of the Company, set their tents on fire, wherein a Mule got burnt. Thus, the conviction of the appellant from Section 436 I.P.C is converted to the offence punishable under Section 435 I.P.C while maintaining the conviction under Section 427 and 506 of the Indian Penal Code.
29. Regarding sentence, I have also considered the submissions of the learned counsel for the appellant, also extenuating and mitigating circumstances. There is no record that the appellant is a previous convict and after the alleged incident indulged into similar or other criminal activities. He is stated to be a rustic villager. Keeping in view the sentence provided under Section 435 of the Indian Penal Code, the ends of justice would be met in case the appellant is sentenced to imprisonment for a period of six months under Section 435 I.P.C and also substitute the sentence to six months for the offences under Sections 427 and 506 of the Indian Penal Code. without disturbing the fines. It is also ordered that all the sentences shall run concurrently.
30. The appellant shall also be given the benefit of detention already undergone by him during the investigation and trial of the case, as per provision of Section 428 of the Code of Criminal Procedure. Thus, ordered accordingly.
31. The appeal stands disposed of to the above extent.
32. The appellant is hereby directed to surrender before the learned trial Court on December 20th, 2011, to serve out the sentence, as modified, failing which, learned trial Court shall take coercive steps to apprehend the appellant to commit him to prison in conformity with this judgment.
33. Send down the records.
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