SAROJ KUMAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner was convicted by the trial court under sections 436 and 323, I.P.C. and sentenced to rigorous imprisonment for four years under the first charge and rigorous imprisonment for six months under the second charge with direction to run the sentences concurrently. The conviction and sentences were also confirmed in appeal. Both the trial court as well as the appellate court missed the fact that under section 436, I.P.C. sentence of fine is also compulsory along with the substantive sentence. The present revision assails the conviction and sentences.

(2.) The prosecution came with the case against the petitioner and other accused persons who are not before this court at 12 noon on 25.5.86 damaged the fence of the informants house with a view to take a road on his homestead land and on his protest threatened to assault him. P.W. 3, sister of P.W. I, put some thorns at the damaged portion of the fence to prevent cattle from coming upon their land but on the next day, i.e. the day of occurrence, the petitioner came in a group and questioned as to who had put the thorns there. On P.W.3 explaining that she had put the same, the petitioner and others abused her and the petitioner dealt a blow on her cheek by means of a Chapal and dragged her and further set fire to the house with match stick as a result of which the entire roof of the house as also the articles inside it were burnt. P.W. I was absent during the occurrence but he came home on receiving the information and seeing the condition of the house reported the matter to the police and after investigation the chargesheet was submitted: P.Ws. 2, 3,4 and 5 are the eye-witnesses to the occurrence. Admittedly P.Ws. 1 and 2 are husband and wife and they are inimical to the petitioner. P.W.S is an independent witness. All of them unequivocally stated of the petitioner having set fire to the house by matchstick. The evidence of P.Ws. 1 to 4, even though they are inimical to the petitioner, is not to be thrown out only on that account but is liable for closer scrutiny. Both the courts below have analysed their evidence and have relied upon the same. Their statement is also corroborated by the independent witness P.W.5. There is hence no possibility of taking a contrary view of the evidence and the conclusion that it was in fact the petitioner who had set fire to the house. Though submission is, raised by the learned counsel for the petitioner that the house in question was not a residential one but was only 6 to 7 feet in length, five to six feet in width, eight feet high from the ground and was, without, any window, yet the question has been dealt with at length in para-6 of the judgment of the trial court saying that the room was a store room of the house of the informant and that the offence was covered within the ingredients of section 436, I.P.C. As such I do not find any merit in this revision which is liable to be dismissed.

(3.) It is however submitted by the learned counsel that the petitioner was eighteen years' old when the occurrence took place and at present he is around 23 years. Further, he is now serving in some company and has no criminal disposition. Considering such facts, the learned Additional Standing Counsel is directed to obtain a report regarding his present conduct. Besides, a report be also called for under section 6 (2) of the Probation of Offenders Act from the concerned District Probation Officer basing on which the petitioner may be given the benefit of the Probation of Offenders Act besides imposing a sentence of fine on him as compensation to the informant. Put up this matter after the report is received. Revision allowed partly.