State Th. SHO P/S Mandi, Poonch vs Sher Baz

Sanjeev Kumar, J

This criminal revision petition by the State is directed against the order dated 04.02.2015 passed by the learned Special (Sessions Judge) Poonch

[‘trial Court’] in case titled ‘State of J&K vs Sher Baz’ by virtue of which the trial Court has discharged the respondent of the offence

punishable under Section 436 RPC.

2 The prosecution case, in brief, is that the complainant Shah Mohd lodged a written report with Police Station, Mandi on 08.01.2015 with the

allegations made therein that during the night intervening 7/8th January, 2015 at about 2 am, two shops were set on fire by the respondent-accused

when he was sleeping in his house and as a result whereof, loss to the tune of Rs.2.00 lac had been caused. It was claimed that the said shops which

were gutted in fire were constructed by the complainant Shah Mohd on the land belonging to the respondent with the arrangement that one of these

two shops would be retained by the complainant and the other would be handed over to the respondents. On the basis of this written application, FIR

No. 03/2015 for offence under Section 436 RPC was registered in Police Station, Mandi and the investigation set in motion.

3 The Investigating Officer, after completing requisite formalities including recording of statements of witnesses under Section 161 Cr.P.C etc., found

the offence under Section 436 RPC established against the respondents, and, accordingly, presented the final report/challan before the trial Court.

4 The matter came up for consideration before the trial Court for framing of charges on 04.02.2015 when the trial Court, after perusing the final report

and going through the evidence collected during the investigation, formulated the opinion that, prima facie, no offence was made out against the

respondent-accused. The trial Court, in the exercise of its powers under Section 268 Cr.P.C discharged the respondent. The respondents has been

discharged by the trial Court primarily on the ground that none of the witnesses, whose statements were recorded by the Investigating Officer under

Section 161 Cr.P.C had stated anything against the respondents which would connect him with the commission of offence under Section 436 RPC.

5 Feeling aggrieved and dissatisfied with the order impugned, the State is before me in this revision petition seeking indulgence of this Court to direct

the trial Court to frame the charge under Section 436 RPC against the respondent in view of sufficient evidence in this regard collected by the

Investigating Officer during the investigation.

6 The order impugned has been assailed primarily on the following grounds:

(i) That the learned trial Court has not properly appreciated the law and facts of the case and has discharged the respondent despite there being

sufficient material on record; and

(ii) That the trial Court has ignored the oral and documentary evidence collected by the Investigating Officer which, if appreciated in proper

perspective, is sufficient to connect the respondent with the commission of offence punishable under Section 436 RPC.

7 Having heard learned counsel for the parties and perused the record, I am of the considered view that there is sufficient evidence on record to

frame the charge under Section 436 RPC against the respondent and the prima facie finding of fact recorded by the trial Court that none of the

witnesses in their statements recorded under Section 161 Cr.PC have deposed anything against the respondent, is factually incorrect and contrary to

record.

8 The Hon’ble Supreme Court, in the case of Sajjan Kumar vs. CBI, (2010) 9 SCC 368 has, in paragraph 21 of the judgment, laid down the broad

principles to be kept in mind while considering the question of framing of charges. For facility of reference, paragraph 21 of the judgment supra is

reproduced hereunder:

“21.On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima

facie case would depend upon the facts of each case.

ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be

fully justified in framing a charge and proceeding with the trial.

iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total

effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving

enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge,

though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must

apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts

emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift

the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common

sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to

discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittalâ€​.

9 In the light of aforesaid principles when the statements of the eye witnesses examined by the Investigating Officer under Section 161 Cr.P.C are

seen, it is crystal clear that the eye witnesses have very clearly stated in their testimonies that it was the respondent, who torched the shops of the

complainant and caused extensive damage to them as well as goods stored therein. The witnesses in their statements have clearly stated that the

shops were set ablaze by the respondent, who was seen holding a ‘mashal’ in his hand. Not only the oral testimonies of the witnesses, but the

circumstantial evidence like the presence of the respondent with ‘mashal’ in his hand near the place of occurrence does make out a case of

commission of offence punishable under Section 436 RPC.

10 Section 425 RPC defines the offence of mischief, whereas mischief by fire or explosive substance with criminal intention to destroy the house etc.,

is punishable under Section 436 RPC. For facility of reference, Sections 425 and 436 RPC are also reproduced hereunder:

“425. Mischief- Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes

the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it

injuriously, commits “mischiefâ€​.

“436. Mischief by fire or explosive substance with intent to destroy house, etc.â€"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.

11 From a bare reading of the statements of the witnesses recorded during the investigation which were part of the final report submitted to the trial

Court, it is abundantly established during investigation that there was some dispute between the complainant Shah Mohd and the respondent with

regard to two shops allegedly constructed by the complainant on the land of the respondent with the understanding that one shop will remain with the

respondent and one shop with the complainant.

12 It has come in the evidence collected during the investigation that the dispute with regard to the aforesaid shops is pending before a Civil Court. It

is, thus, rightly concluded by the Investigating Officer that due to dispute with regard to the shops aforesaid, the respondent set both the shops ablaze

and caused extensive loss to the tune of Rs.2.00 lac to the complainant. The statement of complainant Shah Mohd recorded under Section 161 CrPC

on 08.01.2015 and the statement of Bashir Ahmed recorded under Section on 09.01.2015 clearly implicate the respondent with the commission of

offence punishable under Section 436 RPC. It is surprising that the trial Court has ignored their statements and has recorded in the order impugned

that none of the witnesses, whose statements were recorded during the investigation, have said anything against the respondent.

13 Rushing by the trial Court to the conclusion that there was no evidence against the respondent which would connect him with the commission of

offence punishable under Section 436 RPC has resulted in serious miscarriage of justice. Had the trial Court bothered to read the statements of the

witnesses, it would not have taken the view which it has taken and would not have erroneously discharged the respondent.

14 An argument was raised by Mr. Shan, learned counsel for the respondent that Section 436 RPC would be attracted only if mischief by fire is

committed to cause destruction of a dwelling house and, therefore, mischief vis a vis the destruction of shops may not fall within the purview of

section 436 RPC.

15 I have given my anxious consideration to the argument of learned counsel for the respondent but find little substance in it. The language of Section

436 RPC is very clear and unequivocal which provides that whosoever 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 home dwelling or

as a place for the custody of the property, shall be punished under the said Section with imprisonment for life or with imprisonment by either

description for a term which may extend to ten years and shall also be liable to fine.

16 From a plain reading of Section 436 RPC, it is clear that the mischief, if committed in reference to a place of worship or a place of home dwelling

or a place for the custody of the property, would fall within the purview of Section 436 RPC. Indisputably, the aforesaid shops, where the complainant

had stored his goods, were meant for custody of the property and, therefore, fall within the purview of Section 436 RPC

18 Viewed from any angle, the impugned order passed by the trial Court discharging the respondent from the offence under Section 436 RPC is not

sustainable in law and deserves to be quashed and set aside. Ordered accordingly. The case is remanded to the trial Court to reconsider the question

of framing of charge against the respondent again, in light of the observations made hereinabove and the evidence on record.

Allowed in the aforesaid terms.

The trial Court record be sent down along with copy of this judgment.