GANPAT Vs. CHANDRA

JUDGEMENT

(1.) THIS is a revision under sec. 439 Cr. P. C. by Ganpat against the Additional Sessions Judge, Sikar directing that Ganpat accused may be arrested and be committed for trial under sec. 436 IPC. The material facts are these : On 23rd December, 1956 Chandra, the opposite party filed a complaint against Ganpat and 6 other persons under secs. 436, 395, 147 and 323 I. P. C. making the following allegations: - 1. That on 5th Dec, 1958 seven persons including the present petitioner Ganpat, Himmat Singh Sub-Inspector and Dhokalsingh another police official formed an unlawful assembly and went to the Dhani of the complainant. There Ganpat the petitioner and one Pabudansingh began to take away sheaves from his Dhani and the remaining accused began taking 'pala' and 'toontra' (grain ears) which were just near to his Dhani. The wife of Chandra objected to be taking away of the articles. Thereupon Himmatsingh, S. H. O. caught hold of her neck and pushed her away. She tried again but met the same fate. She raised alarm which attracted some neighbours who came to the spot of occurrence. After the sheaves and two bags of wool were thus taken the accused Ganpat set fire to the Dhani which was reduced to ashes. Weaving articles worth Rs. 150/- and door shutters worth Rs. 10/- and some other miscellaneous articles were burnt therein. The fire could not be extinguished, because the accused Himmat Singh had arrested the complainant Chandra and his nephew Deva. An explanation for the delay was also offered by the complainant stating that he approached the Superintendent of Police and other higher authorities but failed to get any redress and ultimately under the advice of some M. P. he filed the present complaint. An inquiry under chapter XVIII was held by the Magistrate during which the complainant and the accused both examined their witnesses. The trial Magistrate after completing the enquiry discharged all the accused. Dealing with the case of 436 I. P. C. against Ganpat the trial Magistrate gave some reasons which may be summed up as follows : - (1) The complainant and his witnesses had stated that they could not extinguish the fire as they had been kept under custody by the S. H. O. During statements they made some discrepant statement that they had been hand-cuffed. (2) At the time of the incident the Sub Inspector himself was present and it was, therefore, impossible that the accused Ganpat would dare commit offence under sec. 436 I. P. C. in the very presence of the Sub Inspector and quite a large number of other persons. (3) When the wife of Chandra could resist the Sub Inspector in his attempt to take fodder, why she could not resist Ganpat in his act of setting fire to the Dhani. (4) Referring to the statement of Balu, the trial Magistrate held that he is unreliable as he could not give the details of the articles that were in the hut and burnt although he was quite Hereby. Another reason stated was that when everybody else attempted to extinguish the fire there is no obvious reason why he did not take part in extinguishing the fire. He held the entire evidence unreliable and passed an order of discharge.

(2.) ON revision by the complainant the Additional Sessions Judge, Sikar agreed with the finding of the trial Magistrate so far as other accused are concerned. He recorded the following observations - "to me it appears that the lower Court has rightly discharged Himmat Singh, Pabudan Singh, Kana, Rameshwar, Asha and Dhokal Singh. They have not only been falsely prosecuted, but they have been made to incur a good deal of expenses in obtaining a large number of certified copies from the Police to produce the same in defence in this case. "