KARAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS revision is directed against order dated 8.9.1995, passed by Additional Sessions Judge, Hoshiarpur holding that the offence prima facie made out against the accused is one punishable under Section 435 IPC and not under Section 436 IPC. The prosecution case was that the dwelling house/the property for custody of cattle is covered under Section 436 IPC. The offence under Section 436 IPC is in respect of mischief by fire or explosive substance with intent to destroy house etc. Section 436 IPC reads as under : "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."

(2.) THE complainant felt aggrieved by the order of the learned Additional Sessions Judge and he has filed this revision. Notice of the revision was sent to the respondents who have put in appearance as mentioned above.

(3.) THE grounds of revision, as mentioned in the petition, are that the learned Additional Sessions Judge has failed to appreciate that in view of the material on record coupled with FIR as well as news item appeared in newspapers on 3.4.1995 and 4.4.1995, the offence under Section 436 IPC is prima facie made out. With the grounds of revision, annexure P.1 to P.3 were annexed. Annexure P1 is the copy of the FIR. It has been mentioned in the FIR the accused set fire to the huts that were built on the land for tying the cattles. There are other averments regarding the other offences mentioned the FIR with which at present there is no concern. The other annexures are news items in the newspapers. The learned Additional Sessions Judge at the time of framing of the charge has gone on recording a finding as to whether the property that has been set a blazed, amounts to place of keeping the property or place of custody of the property, as is mentioned in Section 436 IPC. While considering this aspect the learned Additional Sessions Judge placed reliance on a judgment Babu Lal and another v. State, 1952 Crl. L.J. 299 delivered by Lucknow Bench of Allahabad High Court wherein it was held that the cattle -shed without any door or bar cannot be treated as a place of custody of property but is merely a place for keeping the property and the provisions of Section 435 IPC would be attracted rather than the provisions of Section 436 IPC. It may be mentioned that at the stage of framing of the charge, the trial Judge is not required to pre judge the issue before the trial and record a finding dependent upon the facts as to the building or the property which is said to have been set ablazed. The authority, that has been relied upon is a judgment which was delivered after the trial of the case which was taken in appeal or revision before the High Court. The learned Additional Sessions Judge was required under the law at the stage of framing the charge to assume the averments made in the FIR as it is for considering as to what offences were made out. Apart from it, if after the conclusion of the trial, the trial court comes to the finding that the offence under Section 436 IPC is made out instead of one under Section 435 IPC, then it will not be permissible in law to record a conviction thereunder. Although the converse may happen, that is, where a charge of heinous offence is made out, conviction for a lesser offence under the same charge is permissible in law.