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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Haradhan Malik @ Hari. – Appellant
Versus
The State of West Bengal – Respondent
CRA 80 of 2017
Decided on : 13-05-2024
Arson - Conviction - IPC Sections 436, 435, 222, CrPC Section 216 - The court interpreted the essential ingredients of arson under IPC, concluding that the act did not meet the criteria for Section 436 but did for Section 435, allowing for a conviction under a lesser charge.
Fact of the Case:
The appellant was convicted for setting fire to a tea stall, leading to its destruction. The prosecution argued that the act constituted arson under Section 436 of the IPC, while the appellant claimed there was no stall to burn.
Finding of the Court:
The court found that the evidence established the existence of a temporary stall and that the appellant set fire to it. However, the act did not meet the criteria for Section 436, leading to a conviction under Section 435.
Issues: Whether the appellant's actions constituted an offence under Section 436 of the IPC or a lesser charge under Section 435.
Ratio Decidendi: The court held that the essential ingredients for Section 436 were not met, as the structure was temporary and did not qualify as a building under the section, allowing for conviction under the lesser charge of Section 435.
Result: The conviction was modified to Section 435 of IPC with a sentence of imprisonment for the period already served and a fine.
JUDGMENT :
Shampa Dutt (Paul), J.
The Appeal:-
1. The present appeal has been preferred against a judgment and order dated 21.12.2016 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Hooghly in connection with Sessions Trial Case No. 12 of 2016, Dadpur Police Station Case No. 98/2015 dated 10.06.2015, convicting the appellant and sentencing him to suffer rigorous imprisonment for 5 years and also pay a fine of Rs. 2000/-, in default further rigorous imprisonment for 3 months for the offence under Section 436 of the Indian Penal Code.
The Prosecution:-
2. The prosecution case is that:-
On 04.06.2015 at about 3 p.m. one Hari Malik @ Haradhan Malik came to the tea stall of the de facto complainant with a straw roof situated at the beneath of the Mathurkunda Bridge and suddenly set fire in the tea stall by throwing burning haystack “kharer ati” on the roof of the said tea stall and ultimately the said tea stall was destroyed by turning into asses.
3. On the basis of aforesaid complaint, Dadpur Police Station Case No. 98/2015 dated 10.06.2015 under Sections 436/427 of the Indian Penal Code was started. After completion of the investigation, charge sheet being no. 87 of 2015 dated 30.06.2015 under Sections 436/427 of the Indian Penal Code was submitted.
4. During trial, the prosecution examined 6 witnesses.
5. Documents which includes a seizure list has been marked as Exhibit 1 to 4.
The Evidence:-
6. The relevant portion of the written complaint is as follows:-
My shop is located on a land (property of Govt.) which is on the side of Muthurkar Bridge.
I am poor fellow and I have no son. I sell chai, chop and muri and this is the only way of my living”.
7. Prosecution Witness no. 1 is the complainant who has reiterated the written complaint. On being cross examined he has stated that:-
8. P.W.2 has seen the fire and is a witness to the seizure of the burnt articles.
9. P.W.3 is an eye witness to the incident and the complainant’s nephew.
10. P.W.4 is the complainant’s neighbour and has stated that the complainant’s shop was destroyed by fire. He is the scribe of the Written Complaint.
11. P.W. 5 has a shop near the complainant’s stall. He saw the stall totally burnt down on the next day.
12. The seizure list marked Exhibit 1 series proves seizure of ash and brunt bamboos collected from the brunt shop of the complainant at the place of occurrence.
13. In his examination under Section 313 of Cr.P.C., the appellant has stated that he was at the place of occurrence and did not run away. He has further stated that he and others were protesting as allegedly the complainant used to sell illicit liquor.
14. The allegations of the complainant allegedly selling liquor in his stall has also been stressed upon at the time of argument.
15. This prima facie proves that the accused has some notice, which was to stop the complainant from allegedly selling liquor, but taking the law in ones own hand is neither permissible nor to be encouraged.
16. The Appellant’s case is that there actually was no shop/stall which belonged to the complainant, so the question of setting fire to it, did not arise.
Analysis of Evidence:-
17. From the evidence on record, it has been proved beyond reasonable doubt that the complainant had a temporary stall with a thatched roof at the place of occurrence and that the appellant set fire to it, as a protest for allegedly selling illicit liquor in the said stall.
Conclusion
The court established that it can alter charges under Section 216 CrPC based on evidence, ensuring no prejudice to the accused, even after the trial has commenced.
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