Durga Singh vs State Of U.P.
2015 Latest Caselaw 2436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 36
 

 
Case :- JAIL APPEAL No. - 7742 of 2009
 

 
Appellant :- 	Durga Singh
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- 	Smt. Kavita Tomar, Amicus Curie
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Pramod Kumar Srivastava)

1.This appeal has been preferred against the judgment passed by Additional Sessions Judge/ F.T.C. No. 3, Basti in Special Session Trial No. 61 of 1996 (State v. Durga Singh) under Section 436 IPC and Section 3(2)(iv) The Scheduled Castes or Schedule Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as "SC/ST Act"] in case crime no. 25/1995, p.s.-Dubaulia, Basti, by which, sole accused Durga Singh was convicted on 05.12.2008 for the charges u/s 436 IPC and Section 3(2)(iv) of the SC/ST Act; and punished on 06.12.2008 for the charge u/s 336 IPC with rigorous imprisonment of 10 years and fine of Rs. 500/- (in default of payment one month's additional imprisonment) and for the charge u/s 3(2)(iv) of the SC/ST Act with imprisonment for life and fine of Rs. 500/- (in default of payment one month's additional imprisonment), with direction that both the sentences would run concurrently.

2.The prosecution case in brief was that informant Raghuwar and accused Durga Singh are the resident of same village. Informant belongs to the S/C (scheduled caste) community and accused is non- SC/ST person. On 17.03.1995 at about 8:00 p.m. in night informant Raghuwar (PW1) while cooking inside his house saw the flames in backside of his house. Then he rushed out of his house and saw that Neebar Singh and his son Durga Singh of his village put on fire his house from the backside and were running away. On his alarm his brother Shivraj (PW-2) and son Dinai (PW-3) had seen the Neebar Singh and Durga Singh fleeing away from his house after putting his house on fire. The informant had given a written report (Ex-A-1) of this incident in police station after about three days on 20.03.1995 at 7:00 p.m., on the basis of which case crime no. 25/1995 was registered. After completion of the investigation, charge-sheet for the offences u/s 436 IPC and Section 3(2)(iv) of the SC/ST Act were filed against two accused persons, namely, Neebar Singh and and his son Durga Singh (present appellant), on the basis of which Special S.T. No. 61/1996 was registered, in which both the accused were charged for the aforesaid offences. They denied the charges, pleaded not guilty and claimed to be tried. But during trial, accused Neebar Singh had died and his trial was abated; so trial proceeded against Durga Singh only.

3.During trial, prosecution side had examined PW-1 Raghuwar, (informant), PW-2 Shivraj, PW-3 Dinai, PW-4 H.C. Harikrishna Singh and PW-5 S.I. Ali Raza (IO). These witnesses had proved documents of prosecution side.

4.After conclusion of the prosecution evidence, statement of accused Durga Singh u/s 313 Cr.P.C. was recorded in which he had denied the prosecution evidence and said that those evidences are false, erroneous investigation had been done and he is innocent. Defence side had not adduced any defence evidence.

5.After affording opportunity of hearing to the prosecution and defence side, the trial court had passed the judgment dated 05.12.2008, by which accused Durga Singh was convicted as above. Then after affording opportunity of hearing on the point of the quantum of the sentence, the trial court had sentenced the appellant on 06.12.2008 as above. Aggrieved by which, present appeal has been preferred by the accused.

6.Smt. Kavita Tomar, learned Amicus Curiae appeared on behalf of the appellant, and learned AGA appeared for the State respondent. We have heard their arguments and perused the original records.

7.Learned counsel for the appellant contended that there is no eye witness of the incident and accused persons were only seen going away from the spot. There is no evidence that they had committed any mischief by fire. She contended that the appellant was falsely implicated in this matter due to enmity as accepted by PW-1 during his examination-in-chief. She further contended that the FIR is much delayed without any explanation, so appeal should be allowed. Her alternative argument was that even if prosecution case is accepted to be true for some time, in that case also there appears no commission of offence under SC/ST Act because according to the prosecution evidence alleged arsoning was not committed for the reason of informant being member of SC/ST community. The informant and appellant had been litigating for the land over which house of the informant is situated and Neebar Singh had intention to dispossessing the informant from that land, and due to this enmity charged incident of arsoning was committed. Therefore, no charge u/s 3(2)(iv) of the SC/ST Act was made out and conviction of appellant for the said offence should be quashed. Her alternative argument on the point of the quantum of sentence was that the appellant was young at the time of the incident having no criminal history. He is only an earning member of his house and his father had expired during the trial and no one else is there to look after his family members. These facts were placed before the trial court for taking into account on the point of quantum of sentence, but were not considered. The appellant is a poor person having no means to contest his case and is in jail for about 7 years, and in any case his sentence should be mitigated.

8.Learned AGA has contended that the appellant had put on fire the house of the informant due to enmity. The delay in lodging of the FIR has been explained through the evidences adduced. AGA had fairly accepted that the court has power to pass appropriate sentences. We have considered these arguments.

9. Section 436 IPC speaks about the punishment for mischief by fire 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."

10.So far conviction of the appellant for the charge u/s 436 IPC is concerned, we have meticulously gone through adduced evidences. It is a fact that none has seen the appellant or his father late Neebar Singh igniting the flame, but after seeing the flame by informant they were identified in the light of flames. PW-1 (informant) had seen the flames in back portion of his house and rushed out and seen the appellant and his father fleeing away from the spot. On his raising alarm, his brother Shivraj (PW-2) and son Dinai (PW-3) had rushed on spot. These facts were proved by PW-1 Raghuwar, PW-2 Shivraj and PW-3 Dinai, who had also stated that at the time of the incident at about 8:00 p.m. they heard the alarm of Raghuwar and rushed to spot and found that the house of Raghuwar was in flames from the backside and they also saw that Durga Singh and his father Neebar Singh were running from the spot after arsoning. Due to this fire, rice, flour and house hold articles was destroyed. After this incident, the reconciliation in panchyat was attempted but that could not be materialized, then informant Raghuwar had lodged the report in police station. From the evidence of three witnesses of fact, it is proved that Neebar Singh and his son Durga Singh (appellant) were involved in arsoning in the backside of house of the informant Raghuwar. It was not proved from the evidence as to how much loss was in fact occurred, but it is proved that the appellant was involved in this charged incident of mischief by fire on instruction of his father Neebar Singh. Therefore the trial court had committed no error when it had convicted appellant Durga Singh for the charge u/s 436 IPC. Therefore, the conviction for the charge u/s 436 IPC is found correct and should be confirmed.

11.But so far as conviction of the appellant for the charge u/s 3 (2)(iv) of the SC/ST Act is concerned, the argument of Amicus Curiae is correct. The informant PW-1 Raghuwar had admitted that he had old and long dispute of land and for that reason enmity with Neebar Singh and Durga Singh for ownership and possession of the land over which his house is situated. The said land initially belonged to Neebar Singh, but after consolidation the Neebar Singh was given compensation for the same and said land was converted into abadi land and portion of land relating to the house of appellant was given to him after survey by Lekhpal with the help of police. From the prosecution evidence, it is proved that the alleged act of mischief by arsoning was committed by the appellant on instruction of his father only because they had old property dispute for the land over which informant's house existed. The charged incident was not committed because informant was member of the scheduled community, but it was committed because of other reason of enmity relating to land.

12. Section 3(2)(iv) and (v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989 reads as under:

"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-

(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine"

13.The provision of Section 3(2)(iv) or (v) of the SC/ST Act, as noted above provides that a person can be punished under these provisions only when he commit such offence against person of SC/ST community on the ground that such a person/victim is a member of SC/ST. From the evidence in present case, it is proved that charged incident of mischief had been committed by accused-appellant only due to property dispute and enmity relating to land, and not for any other reason. There is no evidence from prosecution case that offence was committed because victim belongs to scheduled-caste community. At least there is no evidence in this regard. Therefore, we are of well thought-out opinion that accused-appellant cannot be punished for offence punishable under Section 3(2)(iv) of SC/ST Act.

14.Hon'ble Supreme Court in Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 has held as under:

"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence."

15. Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170  has held as under:

13."11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."

16. On the basis of above discussion it is explicitly clear that charged offence of mischief by fire had not been committed because victim was a member of SC/ST community. This offence appears to have been committed only because of dispute of title and possession of land over which victim's house is standing. In such a case offence punishable under section 3(2)(iv) of Scheduled Castes or Schedule Tribes Act is not been committed. Therefore the finding of of trial Court holding the appellant guilty for the offence under SC/ST Act is erroneous and is liable to be set aside.

17. In view of the submission on behalf of appellant on quantum of sentence, the only question to be considered is whether the sentence of life for charge u/s 436 IPC in present case is reasonable or excessive?

18. The Section 235 of the Criminal Procedure Code, 1973 reads :

"(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law".

19.In present case after the verdict of conviction the accused-appellant had, at the time of hearing on point of quantum of sentence, all relevant factors available and presented, should have been considered for determining the appropriate amount of sentence. But the trial Court had not considered them because the Sessions Judge had erroneously connected punishment of charge under section 436 IPC with that of section3(2)(iv) SC/ST Act and awarded minimum prescribed punishment for said offence. Thus the Additional Sessions Judge, in the instant case, had not complied with the obligation which Section 235(2) imposes. As discussed above, in this case offence of section 3(2)(iv) SC/ST Act is not made out, therefore punishment should have been for charge u/s 436 IPC only and that too after affording opportunity of pre-punishment hearing as discussed above. Such hearing was made during appeal.

20.The sentencing procedure is given in the Code of Criminal Procedure, which provides broad discretionary sentencing powers to judges. In the absence of an adequate sentencing policy or guidelines, it comes down to the judges to decide which factors to take into account and which to ignore. From various judgments of Hon'ble Apex Court it has been established that at the time of sentencing the Courts should consider the aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated.  It is erroneous for the court to mechanically proceed to impose any sentence without taking into account all aggravating and mitigating circumstances.

21.Now the matter is limited to the proper punishment for the offence u/s 436 IPC, and we have to consider about the appropriate sentence for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. From facts and circumstances of the case before us, as regards aggravating circumstance is concerned it is clear that appellant had acted according to wishes of his father Neebar Singh, without using his mind and had helped his father in putting fire the house of victim/ informant, which resulted in the loss of shelter to victim. So far as mitigating circumstances are concerned, taking note of various factors including the age of the young appellant-accused being a rustic poor villager of about 22-23 years at the time of the incident (his age being 36 years at time of his statement u/s 313 CrPC in year 2008) which cannot be treated as very mature, he is the only bread winner of his house, it is his first guilt. Apart from it he hails from such poor family that he cannot afford expenses of a lawyer, so he was provided help of Amicus Curie at the expenses of State, the award of 10 years R.I. is excessive. These points were not considered at the time of awarding the punishment; and the said sentence was awarded, which should be mitigated. This contention of learned Amicus Curie for the appellant cannot be ignored that during trial and then after conviction appellant had suffered sufficient time in incarceration (more than six years) which would have taught him appropriate lesson to refrain from such overt acts.

22.While we see no reason to differ with the findings recorded by the trial court regarding charged offence of section 436 IPC, we do see substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the above mentioned aggravating and mitigating attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court should take lenient view as far as the quantum of sentence is concerned. Keeping in view the attending circumstances, we are of the considered view that ends of justice would be met if the punishment awarded to the appellant is reduced. So, it appears appropriate that in present case the sentence should not exceed more than seven years' imprisonment.

23.In view of above facts and discussion, the order of conviction u/s 3(2)(iv) Schedule Tribes (Prevention of Atrocities) Act, 1989 is set aside; but the conviction u/s 436 IPC imposed on the appellant is hereby confirmed. For the charge u/s 436 IPC the punishment of sentence of imprisonment of 10 years is modified to rigorous imprisonment of 7 years. With this modification of sentence, the appeal stands disposed off.

24.Let the copy of this judgment be sent to Sessions Judge, Basti of ensuring compliance.

Order Date :- 18.09.2015

Sanjeev