Harnek Singh @ Maddi vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—The present appeal has been filed by Harnek Singh @ Maddi. He has been sentenced by the Court of Additional Sessions Judge (Adhoc), Fast Track Court, Ludhiana as under:- u/s 436 IPC RI for two years and fine of Rs. 500 each. In default of payment of fine further undergo RI for 15 days.

u/s 325 IPC RI for two years and fine of Rs. 500 each. In default of payment of fine further undergo RI for 15 days.

u/s 323 IPC RI for six months. Record of the trial Court was requisitioned. The appellant has been tried in case FIR No. 114 dated 18.7.2003 registered at Police Station Sidhwan Bet, under Sections 436, 323, 325 IPC. In the head note of the judgment wrongly instead of Section 436, Section 336 has been recorded. The FIR was registered on the basis of a statement made by Gurdip Singh son of Inder Singh. His statement has been exhibited as Ex.PA. He stated that he is a resident of Village Salempura and on the night of 17.7.2003, he was in his house, when his neighbourer Harnek Singh @ Maddi son of Dayal Singh (present appellant) came in front of his house and started giving abuses. Complainant Gurdip Singh had restrained him but the appellant had not desisted. Therefore, he went to the house of Karnail Singh son of Sahib Singh, whose mother Kartar Kaur was Member Panchayat. They told to bring Harnek Singh @ Maddi to their house so that they can make him understand and see reason. Gurdip Singh along with his wife took Harnek Singh @ Maddi to the house of Kartar Kaur who told complainant to leave Harnek Singh and the matter will be resolved in the morning before the Panchayat. While they were talking, Harnek Singh @ Maddi went away. When complainant Gurdip Singh and his wife came back to their house, then Harnek Singh @ Maddi had put their hut (Chhan) on fire and he also picked up a stick and gave blow on the fingers of left hand of Gurdip Singh. They raised noise `Mar Ditta, Mar Ditta''. Their neighbourer Binder Kaur was attracted to the spot. Other people also gathered. It was further stated that in the hut domestic goods like bedding and 3-4 bags of garlic were lying and they were burnt in fire. The cause of grudge stated was that earlier Harnek Singh @ Maddi was apprehended by the police for distilling illicit liquor and Harnek Singh appellant had a suspicion that complainant had relayed information to the police. On basis of statement Ex.PA, formal FIR Ex.PA/3 was recorded. Matter was investigated. Report u/s 173 Cr.P.C. was submitted. The appellant was charged by the Court of Additional Sessions Judge, Ludhiana for offence u/s 436 IPC for setting on fire Jhuggi (hut) of Gurdip Singh. He was also charged under Sections 325 and 323 IPC.

Prosecution examined PW1 Dr.Arun Kumar Gupta. He found the following injuries on the person of Gurdip Singh:

Defused swelling over the medial half of dorsal aspect of left hand. Tenderness present which is more marked over the base of 5th and 4th metacarpals. Advised X Ray.

Abrasion 1.25 cms in size, reddish in colour present on medial aspect of proximal phalanx of left little finger. Tenderness present.

Injury No. 1 was declared grievous. Thereafter, prosecution examined Gurdip Singh as PW-2. His examination-in-chief was recorded on 19.1.2006. However, no cross-examination could be recorded as during pendency of trial, he died. This fact was noticed by the trial Court on 20.11.2008 when statement of Additional Public Prosecutor for the State to this effect was recorded. Kuldeep Kaur appeared as PW-3. She stated that their Jhuggi was put on fire and their house-old articles i.e. 3-4 bags of garlic were destroyed in the fire. In cross-examination, she admitted that she is owner of house of 9 marlas. There is one room and one Chhan (hut) in the house. Prosecution examined SI Surjit Singh as PW-4. He stated that he had taken into possession from the spot burnt pieces of Kanha (strews). Binder Kaur was examined as PW-5. ASI Jasbir Singh appeared as PW-6. Thereafter prosecution evidence was closed and statement of the accused was recorded u/s 313 Cr.P.C.. All incriminating evidence was put to him. He pleaded false implication. In defence Joginder Kaur wife of Karnail Singh was examined as DW-1. Harnek Singh son of Khushal Singh was examined as DW2. He stated that he could not see as to who put the house on fire. Dr. Yadwinder Singh was examined as DW-3. He proved medico legal report of Harnek Singh appellant as Ex.DW3/A. I have heard Mr. Avtar Singh Bhatti, counsel for the appellant and Dr. Uttam Singh Dhaliwal, Additional Advocate General, Punjab. Mr. Bhatti has stated that it has come in evidence that complainant party was having, a constructed house in a plot measuring 9 marlas. A pucca room was constructed thereupon. Along with that a hut was also raised. He submitted that prosecution has failed to prove dimensions of the hut as it has no where come that hut was having any door or permanent fixtures. It has been, further, submitted that no body has been examined to depose regarding visual observation. No draftsman has been examined by the prosecution. It has been further submitted that it has come in the evidence of PW-3 Kuldeep Kaur that only bedding and 3-4 bags of garlic were in the hut. Mr. Bhatti has stated that it cannot be ruled out that hut was meant for storing of domestic goods and the same was not for human dwelling. Therefore, counsel has submitted that no offence u/s 436 IPC is made out. To fortify his contention, counsel for the appellant has relied upon Babulal and Another Vs. State, , wherein it has been held 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 etc. cannot be treated as a building within the meaning of that term used in Section 456, 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...

Drawing force from the above observations in Babulal''s case (supra), counsel has stated that it has came in the testimony of PW4 SI Surjit Singh that he had only recovered burnt pieces of Kanha (strew) from the spot. Counsel has further placed reliance upon judgment rendered by this Court in Smt. Jashmero v. State of Haryana 1979 PLR 420 wherein reliance was placed upon the judgment of Babulal''s case (supra) and it was held as under:

...In ordinary parlance, in villages a Chhan is a Kutcha structure which is roofed by strews or other such like material and the prosecution has failed to lead any evidence to show that the Chhan was in the form of a construction which could be termed as a building within the meaning of Section 436 of the Indian Penal Code....

A similar proposition of law has been propounded in Smt. Perbata Vs. State, ; Raj Singh v. State of Haryana 2003 (2) RCR 697 and Chander v. State of Haryana 2008 (4) RCR (Criminal) 716.

Mr. Dhaliwal has not been able to dislodge the contention raised by counsel for the appellant. He has stated that the very fact that bedding and bags of garlic were inside the Jhuggi, it should be assumed that it was meant for residence purpose. He has not been able to give dimensions of the Jhuggi or whether there was any permanent fixture.

Taking into consideration the submissions made by counsel for the parties, I am of the view that counsel for the appellant has succeeded to persuade this Court to hold that no offence u/s 436 IPC is made out. Hence, the appellant is acquitted of the offence u/s 436 IPC. The appellant has been sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 500/- u/s 325 IPC. It has come in the testimony of PW1 Dr.Arun Kumar Gupta that Gurdip Singh had suffered fracture of hand. The injury was caused by a Sotti which is a blunt weapon. Therefore, there is no escape that offence u/s 325 IPC is made out. Counsel for the appellant has submitted that occurrence pertain to the year 2003. Appellant has suffered a protracted trial. The appellant was also injured in the occurrence and his house had also caught fire. It is submitted that appellant is sole bread earner of his family and has large family to support. Therefore, taking these facts into consideration as mitigating circumstances, sentence awarded u/s 325 IPC should be adequately reduced.

I have given my thoughtful consideration to these submissions advanced by counsel for the appellant. I am of the view that sentence awarded upon the appellant u/s 325 IPC can be adequately reduced. Hence, sentence awarded upon the appellant u/s 325 IPC to undergo rigorous imprisonment for two years, is reduced to eight months rigorous imprisonment. Sentence awarded u/s 323 IPC is maintained. Both the sentences shall run concurrently. However, the sentence of fine is maintained.

With aforesaid modification in the sentence, the present appeal is disposed off.