Pawan Kumar vs State of H.P.

V.K Ahuja, J.—The present criminal appeal has been filed by the Appellant u/s 374 of Cr PC against the judgment dated 9.11.2010 passed by Learned Additional Sessions Judge, Una, vide which the Appellant was convicted and sentenced as under:

Under Section 436 of I.P.C.

Rigorous imprisonment for a period of seven years and fine of Rs. 25,000/-. In case of default in payment of fine, to undergo Rigorous imprisonment for a period of two years more.

Under Section 353 of I.P.C

Rigorous imprisonment for a period of one year and fine of Rs.2000/-. In default of payment of fine, to further undergo Rigorous imprisonment for a period of 3 months.

Under Section 506(II) of I.P.C

Rigorous Imprisonment for a period of one year and fine of Rs. 2000/- and in default of payment of fine, to further undergo Rigorous imprisonment for a period of 3 months.

Briefly stated the facts of the case are that on 26-11-2009 PW-14 Head Constable Sanjay Kumar along with Constable Gurdial Singh and Constable Ram Gopal went to Police Station Una and Lady Constable Nisha, HHG Hari Devi and HHG Lavkesh joined there. They had gone for routine patrol duty, where PW-14 Sanjay Kumar received a secret information that accused deals in the business of selling and purchasing of liquor in his cow-shed in village Mawa Sindian. He wrote a ruqua and sent it through HHC Hari Dev to police Station, Gagret for registration of FIR, on the basis of which FIR No. 143 of 2009 was registered. Thereafter, raiding party proceeded to the cow shed of the accused and reached there around 12.50 p.m. The house of the accused is near the cow-shed and the accused came from the house carrying a plastic canny and a tin having kerosene oil. The accused pushed PW-14 Head Constable Sanjay Kumar and went inside the cow-shed and sprinkled kerosene oil in the cow-shed, and thereafter lit the fire with the help of Matchstick. The cow-shed caught fire and the accused remarked that he had kept the liquor in the cow shed which he has burnt and now he cannot be involved in the excise case. He also proclaimed that he will burn the raiding party by putting the kerosene oil and he fled away from the spot. The matter was reported to SHO Mehar Chand, who reached the spot and took into possession 479 bottles of liquor out of which 216 bottles were filled, whereas, the remaining bottles were burnt and these were taken into possession in FIR No. 143 of 2009 after completing the codal formalities. The statement Ex. PW-13/A was made by PW-14 HC Sanjay Kumar before S.H.O, which was sent to police station for registration of case. The tin and canny were taken into possession along with burnt carpet, pieces of wood by SHO after sealing them. After investigation, the challan was filed before learned Judicial Magistrate who committed the case to learned Sessions Judge, Una by whom it was assigned to learned Additional Sessions Judge, Una, who framed the charge under Sections 436, 353 and 506-II of I.P.C. On conclusion of trial, the Appellant was held guilty and was convicted and sentenced accordingly.

A notice of appeal was issued to the State. I have heard Sh. Naresh Kumar Thakur, Advocate, for the Appellant and Mr. J. S Guleria, Assistant Advocate General for the Respondent.

The submissions made by learned Counsel for the Appellant were that, it looks improbable that the accused was able to go inside the cow-shed when he came there with the plastic canny in his both hands and then burnt the cow-shed in presence of police party who was allegedly present at the spot. It was submitted that story looks improbable and cannot be believed. It was also submitted that the bottles of liquor lying in the cow-shed out of which the some were allegedly burnt were not taken into possession in this case and therefore the prosecution case cannot be relied upon.

On a perusal of evidence led by the prosecution, it is clear that there is statement of PW-14 Sanjay Kumar who was Incharge of the Raiding party, that he raided the cow-shed of the accused on receipt of secret information. He has materially corroborated the assertions made by him in his statement before SHO Ex. PW-13/A that the accused came there with plastic canny and sprinkled Kerosene oil and lit fire to the cow-shed. His statement has been corroborated by the testimony of PW-1 a member of raiding party who was also present there as per statement of PW-14 HC Sanjay Kumar. He has also stated that accused pushed HC Sanjay Kumar, sprinkled kerosene oil inside the cow-shed and then put the cow-shed on fire. He was subjected to detailed cross-examination, but nothing material could be extracted from his cross-examination to show that his statement cannot be relied upon for any reason. PW-7 Constable Ram Gopal, who was also named by PW-14 HC Sanjay Kumar, as member of raiding party, has also materially corroborated the statement of both the witnesses mentioned above. There is No. material contradiction or infirmity in his statement that it cannot be relied upon.

Apart from above, the prosecution had examined PW-2 ASI Anil Kumar who was present with SHO Mehar Chand and on receipt of information from HC Sanjay Kumar that fire has been lit in the cow-shed by the accused, he reached the spot at about 1.00 p.m. and noticed that cow-shed had been burnt and police officials who were present there were putting off the fire. He has also stated that 479 bottles of liquor were recovered from the Cow-shed and out of which 216 bottles were filled and remaining were empty. This statement was further corroborated by PW-3 Hoshiyar Singh who was also present with SHO and on receipt of information they went to village of the accused and there SHO recorded the statement of HC Sanjay Kumar and gave it to him for being taken to police Station for registration of the case.

PW-4 Sh. Ranjeet Singh has been examined as an eye witness. In the statement of PW-14 Sanjay Kumar,it was never his case that he called PW-4, who was present there, was associated before reaching the cow-shed, therefore mere fact that he turned hostile and did not support the prosecution story, does not affect the merits of the case.

PW-5 Sh. Joginder Pal had been called on the spot and he had taken into possession the burnt and unburnt bottles and bag. He also corroborated the prosecution story.

PW-8 Smt. Suman Lata has proved that a case is pending against the accused in FIR No. 143 of 2009 in the excise case.

PW-9 Vinod Kumar had gone to the spot on 8.1.2010 and conducted the demarcation of Cow-shed which was found in Khasra No. 374 belonging to one Sh. Harbans Singh.

PW-10 HHC Sansar Chand has taken the case property to the office of FSL, Dharamshala, where he deposited the same there.

PW-11 HC Ram Swaroop had taken the case property and then re-deposited it and it was sent through HHC Sansar Chand.

From the above discussion of evidence, it is clear that the prosecution has established this fact beyond any reasonable doubt that the accused had set the cow-shed on fire, had prevented the police officials from performing their duty and had also given a threat at that time. There are No. material contradictions or infirmities in the statement of prosecution witnesses to hold that they cannot be relied upon. Mere fact that officials are police officials itself is not sufficient to hold that their statements do not inspire confidence. The statement of official witnesses are also to be relied upon as other witnesses and cannot be dis-believed or rejected merely because of their official status. Non-recovery of bottles in this case does not affect the case, since the accused was not arrested in this case under excise act for which a separate FIR was registered and accused was being tried accordingly in that case.

In view of the above discussion it is clear that learned trial court had come to a right conclusion helding the Appellant guilty under all the three sections and thus those findings are liable to be affirmed.

15.. Coming to the alternate plea raised by the learned Counsel for the Appellant that accused is in custody since 26.11.2009 for more than 18 months and he is a young man of age about 26 years, when his statement was recorded before learned trial Court and deserves leniency of the Court. To substantiate his submission, he placed reliance on the decision of Raj Singh v. State of Haryana, Cr. L.J 1588, wherein on the facts of the case it was held that accused cannot be prosecuted u/s 436 of I.P.C and No. mischief is committed if a person cause loss to his own property. I have already held on the basis of evidence, that ingredients of Section 436 of Code of Criminal Procedure are fully made beyond all reasonable doubt and only question worth consideration is young age of the Appellant, as well as, he had not caused loss to the property of any other person by his own act and he has caused loss to his own cow-shed. This can be a ground for reducing the sentence and keeping in view the totality of the case and age of the Appellant, who has already suffered the sentence for more than one and half year, I am of the considered opinion that he deserves leniency of the Court. Accordingly sentence u/s 436 Indian Penal Code is reduced to one already gone by the Appellant. The fine shall be payable by the Appellant as imposed by learned trial Court, In case the fine, as imposed has been paid by the Appellant, he shall be entitled to be released in this case, if not required in any other case. The appeal filed by the Appellant is accordingly allowed, as discussed above.

Copy of judgment along with record be sent to learned trial Court for compliance. Revised jail warrant be issued accordingly by the Registry.