# Durga Singh v. State

- **Citation:** (2015) 3 ILRA 1102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-18
- **Case number:** Jail Appeal No. 7742 of 2009
- **Bench:** Amreshwar Pratap Sahi, Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-singh-v-state-43366
- **Pages:** 7

## Headnote

A.G.A.
Scheduled
Caste
&
Scheduled
Tribes
(Prevention of Atrocities) Act 1989-Section
3(2)(iv)-Conviction without considering the
aspect-fire was put on consequent to
enmity of civil litigation and not for being
sc/st-held-conviction-not sustainable.
Held: Para-16
On the basis of above discussion it is
explicitly clear that charged offence of
mischief by fire had not been committed
because victim was a member of SC/ST
community. This offence appears to have
been committed only because of dispute of
title and possession of land over which
victim's house is standing. In such a case
offence punishable under section 3(2)(iv) of
Scheduled Castes or Schedule Tribes Act is
not been committed. Therefore the finding
of of trial Court holding the appellant guilty
for the offence under SC/ST Act is
erroneous and is liable to be set aside.
Cr.P.C.-Section 235-Offence u/s 436 and
3(2)(iv) SC/ST Act-conviction by Trail Court
without opportunity to hear the accusedmainly on offence of sc/st Act-while no case
under SC/ST made out-conviction reduced.
Held: Para-19
In present case after the verdict of
conviction the accused-appellant had, at
3 All]
 Durga Singh Vs. State
1103
the time of hearing on point of quantum of
sentence, all relevant factors available and
presented, should have been considered for
determining the appropriate amount of
sentence. But the trial Court had not
considered them because the Sessions
Judge
had
erroneously
connected
punishment of charge under section 436
IPC with that of section3(2)(iv) SC/ST Act
and
awarded
minimum
prescribed
punishment for said offence. Thus the
Additional Sessions Judge, in the instant
case, had not complied with the obligation
which Section 235(2) imposes. As discussed
above, in this case offence of section
3(2)(iv) SC/ST Act is not made out,
therefore punishment should have been for
charge u/s 436 IPC only and that too after
affording opportunity of pre-punishment
hearing as discussed above. Such hearing
was made during appeal.
Case Law discussed:
AIR 2006 SC 1267; (2007) 2 SCC 170

## Text

1102
 INDIAN LAW REPORTS ALLAHABAD SERIES
39, Rule 2 does not come to an end merely
because an appeal against it stands dismissed.
It is in different circumstances that the power
is to be exercised and if conditions mentioned
therein arise, the Court can vacate a
temporary injunction granted by it. even if it
has been subject-matter of appeal provided it
is satisfied that the conditions are such that Us
continuance is not possible and It is giving
rise to undue hardship to party. In the instant
case, the shares of Smt. Urmila Devl and Smt.
Kanak Lata are admittedly 1/2 each. Smt.
Kanak Lata has transferred a specific portion
(western portion) to respondent Nos. 1, 2 and
3. If it is assumed for the sake of argument
that Smt. Kanak Lata could not have
transferred any particular portion of land yet
1/2 share of Smt. Kanak Lata has certainly
passed to the vendees. It makes no difference
if the half share is specified by area. The
parties can always get the land partitioned
and under the circumstances of this case,
when preliminary decree for division of
holding has already been passed, the parties
should get the land partitioned by metes and
bounds."
25. In view of above, the order
impugned dated 10.8.2015, passed by
opposite party no.2 is not sustainable in the
eyes of law. It is hereby set aside. Since this
Court has held that against the order dated
10.8.2015 the appeal shall lie before the
Commissioner, as such, the proceedings under
Section 333 of of U.P.Z.A. & L.R. Act by the
petitioners were nullity in the eyes of law.
26. The writ petition, as such, stands
allowed. The opposite party no.2 shall
consider and pass appropriate orders on the
application for stay as well as on application
for vacation of stay moved by the
petitioners and opposite parties respectively.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Jail Appeal No. 7742 of 2009
Durga Singh
 ...Appellant
Versus
State
...Respondent
Counsel for the Appellant:
Smt. Kavita Tomar, Amicus Curiae
Counsel for the Respondents:
A.G.A.
Scheduled
Caste
&
Scheduled
Tribes
(Prevention of Atrocities) Act 1989-Section
3(2)(iv)-Conviction without considering the
aspect-fire was put on consequent to
enmity of civil litigation and not for being
sc/st-held-conviction-not sustainable.
Held: Para-16
On the basis of above discussion it is
explicitly clear that charged offence of
mischief by fire had not been committed
because victim was a member of SC/ST
community. This offence appears to have
been committed only because of dispute of
title and possession of land over which
victim's house is standing. In such a case
offence punishable under section 3(2)(iv) of
Scheduled Castes or Schedule Tribes Act is
not been committed. Therefore the finding
of of trial Court holding the appellant guilty
for the offence under SC/ST Act is
erroneous and is liable to be set aside.
Cr.P.C.-Section 235-Offence u/s 436 and
3(2)(iv) SC/ST Act-conviction by Trail Court
without opportunity to hear the accusedmainly on offence of sc/st Act-while no case
under SC/ST made out-conviction reduced.
Held: Para-19
In present case after the verdict of
conviction the accused-appellant had, at
3 All]
 Durga Singh Vs. State
1103
the time of hearing on point of quantum of
sentence, all relevant factors available and
presented, should have been considered for
determining the appropriate amount of
sentence. But the trial Court had not
considered them because the Sessions
Judge
had
erroneously
connected
punishment of charge under section 436
IPC with that of section3(2)(iv) SC/ST Act
and
awarded
minimum
prescribed
punishment for said offence. Thus the
Additional Sessions Judge, in the instant
case, had not complied with the obligation
which Section 235(2) imposes. As discussed
above, in this case offence of section
3(2)(iv) SC/ST Act is not made out,
therefore punishment should have been for
charge u/s 436 IPC only and that too after
affording opportunity of pre-punishment
hearing as discussed above. Such hearing
was made during appeal.
Case Law discussed:
AIR 2006 SC 1267; (2007) 2 SCC 170
(Delivered by Hon'ble Pramod Kumar
Srivastava)
1.
This appeal has been preferred
against the judgment passed by Additional
Sessions Judge/ F.T.C. No. 3, Basti in
Special Session Trial No. 61 of 1996 (State
v. Durga Singh) under Section 436 IPC and
Section 3(2)(iv) The Scheduled Castes or
Schedule Tribes (Prevention of Atrocities)
Act, 1989 [hereinafter referred to as "SC/ST
Act"] in case crime no. 25/1995, p.s.-
Dubaulia, Basti, by which, sole accused
Durga Singh was convicted on 05.12.2008
for the charges u/s 436 IPC and Section
3(2)(iv) of the SC/ST Act; and punished on
06.12.2008 for the charge u/s 336 IPC with
rigorous imprisonment of 10 years and fine
of Rs. 500/- (in default of payment one
month's additional imprisonment) and for
the charge u/s 3(2)(iv) of the SC/ST Act
with imprisonment for life and fine of Rs.
500/- (in default of payment one month's
additional imprisonment), with direction
that both the sentences would run
concurrently.
2. The prosecution case in brief was
that informant Raghuwar and accused
Durga Singh are the resident of same
village. Informant belongs to the S/C
(scheduled caste) community and accused is
non- SC/ST person. On 17.03.1995 at about
8:00 p.m. in night informant Raghuwar
(PW1) while cooking inside his house saw
the flames in backside of his house. Then he
rushed out of his house and saw that Neebar
Singh and his son Durga Singh of his
village put on fire his house from the
backside and were running away. On his
alarm his brother Shivraj (PW-2) and son
Dinai (PW-3) had seen the Neebar Singh
and Durga Singh fleeing away from his
house after putting his house on fire. The
informant had given a written report (Ex-A1) of this incident in police station after
about three days on 20.03.1995 at 7:00
p.m., on the basis of which case crime no.
25/1995 was registered. After completion of
the investigation, charge-sheet for the
offences u/s 436 IPC and Section 3(2)(iv) of
the SC/ST Act were filed against two
accused persons, namely, Neebar Singh and
and his son Durga Singh (present appellant),
on the basis of which Special S.T. No.
61/1996 was registered, in which both the
accused were charged for the aforesaid
offences. They denied the charges, pleaded
not guilty and claimed to be tried. But
during trial, accused Neebar Singh had died
and his trial was abated; so trial proceeded
against Durga Singh only.
3.
During trial, prosecution side had
examined PW-1 Raghuwar, (informant),
PW-2 Shivraj, PW-3 Dinai, PW-4 H.C.
Harikrishna Singh and PW-5 S.I. Ali Raza
1104
 INDIAN LAW REPORTS ALLAHABAD SERIES
(IO). These witnesses had proved documents
of prosecution side.
4. After conclusion of the prosecution
evidence, statement of accused Durga Singh
u/s 313 Cr.P.C. was recorded in which he
had denied the prosecution evidence and said
that those evidences are false, erroneous
investigation had been done and he is
innocent. Defence side had not adduced any
defence evidence.
5. After affording opportunity of
hearing to the prosecution and defence side,
the trial court had passed the judgment dated
05.12.2008, by which accused Durga Singh
was convicted as above. Then after affording
opportunity of hearing on the point of the
quantum of the sentence, the trial court had
sentenced the appellant on 06.12.2008 as
above. Aggrieved by which, present appeal
has been preferred by the accused.
6.
Smt. Kavita Tomar, learned
Amicus Curiae appeared on behalf of the
appellant, and learned AGA appeared for
the State respondent. We have heard their
arguments and perused the original records.
7.
Learned counsel for the appellant
contended that there is no eye witness of the
incident and accused persons were only seen
going away from the spot. There is no
evidence that they had committed any
mischief by fire. She contended that the
appellant was falsely implicated in this
matter due to enmity as accepted by PW-1
during his examination-in-chief. She further
contended that the FIR is much delayed
without any explanation, so appeal should be
allowed. Her alternative argument was that
even if prosecution case is accepted to be
true for some time, in that case also there
appears no commission of offence under
SC/ST Act because according to the
prosecution evidence alleged arsoning was
not committed for the reason of informant
being member of SC/ST community. The
informant and appellant had been litigating
for the land over which house of the
informant is situated and Neebar Singh had
intention to dispossessing the informant from
that land, and due to this enmity charged
incident
of
arsoning
was
committed.
Therefore, no charge u/s 3(2)(iv) of the
SC/ST Act was made out and conviction of
appellant for the said offence should be
quashed. Her alternative argument on the
point of the quantum of sentence was that the
appellant was young at the time of the
incident having no criminal history. He is
only an earning member of his house and his
father had expired during the trial and no one
else is there to look after his family
members. These facts were placed before the
trial court for taking into account on the point
of quantum of sentence, but were not
considered. The appellant is a poor person
having no means to contest his case and is in
jail for about 7 years, and in any case his
sentence should be mitigated.
8. Learned AGA has contended that
the appellant had put on fire the house of
the informant due to enmity. The delay in
lodging of the FIR has been explained
through the evidences adduced. AGA had
fairly accepted that the court has power to
pass appropriate sentences. We have
considered these arguments.
9. Section 436 IPC speaks about the
punishment for mischief by fire as under :
"436. Mischief by fire or explosive
substance with intent to destroy house, etc.--
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
3 All]
 Durga Singh Vs. State
1105
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."
10. So far conviction of the appellant
for the charge u/s 436 IPC is concerned, we
have meticulously gone through adduced
evidences. It is a fact that none has seen the
appellant or his father late Neebar Singh
igniting the flame, but after seeing the flame
by informant they were identified in the light
of flames. PW-1 (informant) had seen the
flames in back portion of his house and
rushed out and seen the appellant and his
father fleeing away from the spot. On his
raising alarm, his brother Shivraj (PW-2) and
son Dinai (PW-3) had rushed on spot. These
facts were proved by PW-1 Raghuwar, PW2 Shivraj and PW-3 Dinai, who had also
stated that at the time of the incident at about
8:00 p.m. they heard the alarm of Raghuwar
and rushed to spot and found that the house
of Raghuwar was in flames from the
backside and they also saw that Durga Singh
and his father Neebar Singh were running
from the spot after arsoning. Due to this fire,
rice, flour and house hold articles was
destroyed.
After
this
incident,
the
reconciliation in panchyat was attempted but
that could not be materialized, then
informant Raghuwar had lodged the report in
police station. From the evidence of three
witnesses of fact, it is proved that Neebar
Singh and his son Durga Singh (appellant)
were involved in arsoning in the backside of
house of the informant Raghuwar. It was not
proved from the evidence as to how much
loss was in fact occurred, but it is proved that
the appellant was involved in this charged
incident of mischief by fire on instruction of
his father Neebar Singh. Therefore the trial
court had committed no error when it had
convicted appellant Durga Singh for the
charge u/s 436
IPC.
Therefore, the
conviction for the charge u/s 436 IPC is
found correct and should be confirmed.
11. But so far as conviction of the
appellant for the charge u/s 3 (2)(iv) of
the SC/ST Act is concerned, the argument
of Amicus Curiae is correct. The
informant PW-1 Raghuwar had admitted
that he had old and long dispute of land
and for that reason enmity with Neebar
Singh and Durga Singh for ownership and
possession of the land over which his
house is situated. The said land initially
belonged to Neebar Singh, but after
consolidation the Neebar Singh was given
compensation for the same and said land
was converted into abadi land and portion
of land relating to the house of appellant
was given to him after survey by Lekhpal
with the help of police. From the
prosecution evidence, it is proved that the
alleged act of mischief by arsoning was
committed by the appellant on instruction
of his father only because they had old
property dispute for the land over which
informant's house existed. The charged
incident was not committed because
informant was member of the scheduled
community, but it was committed because
of other reason of enmity relating to land.
12. Section 3(2)(iv) and (v) of the
Scheduled Castes or Schedule Tribes
(Prevention and Atrocities) Act, 1989
reads as under:
"3(2) whoever, not being a member
of Scheduled Caste or Schedule Tribe-
(iv) commits mischief by fire or any
explosive substance intending to cause or
knowing it to be likely that he will thereby
cause destruction of any building which is
ordinarily used as a place of worship or
1106
 INDIAN LAW REPORTS ALLAHABAD SERIES
as a place for human dwelling or as a
place for custody of the property by a
member of a Scheduled Caste or a
Scheduled Tribe, shall be punishable with
imprisonment for life and with fine;
(v) commits any offence under the
Indian
Penal
Code
(45
of
1860)
punishable with imprisonment for a term
of ten years or more against a person or
property on the ground that such person
is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs
to such member, shall be punishable with
imprisonment for life and with fine"
13. The provision of Section 3(2)(iv) or
(v) of the SC/ST Act, as noted above provides
that a person can be punished under these
provisions only when he commit such offence
against person of SC/ST community on the
ground that such a person/victim is a member
of SC/ST. From the evidence in present case,
it is proved that charged incident of mischief
had been committed by accused-appellant
only due to property dispute and enmity
relating to land, and not for any other reason.
There is no evidence from prosecution case
that offence was committed because victim
belongs to scheduled-caste community. At
least there is no evidence in this regard.
Therefore, we are of well thought-out opinion
that accused-appellant cannot be punished for
offence punishable under Section 3(2)(iv) of
SC/ST Act.
14. Hon'ble Supreme Court in
Dinesh @ Buddha v. State of Rajasthan,
AIR 2006 SC 1267 has held as under:
"15. Sine qua non for application of
Section 3(2)(v) is that an offence must
have been committed against a person on
the ground that such person is a member
of Scheduled Castes and Scheduled
Tribes. In the instant case no evidence has
been led to establish this requirement. It
is not case of the prosecution that the
rape was committed on the victim since
she was a member of Scheduled Caste. In
the absence of evidence to that effect,
Section 3(2)(v) has no application. Had
Section 3(2)(v) of the Atrocities Act been
applicable then by operation of law, the
sentence would have been imprisonment
for life and fine.
16. In view of the finding that Section
3(2)(v) of the Atrocities Act is not applicable,
the sentence provided in Section 376(2)(f),
IPC does not per se become life sentence."
15. Hon'ble Supreme Court in
Ramdas v. State of Maharashtra, (2007) 2
SCC 170 has held as under:
13."11. At the outset we may observe
that there is no evidence whatsoever to prove
the commission of offence under Section
3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The mere fact that the victim
happened to be a girl belonging to a
Scheduled Caste does not attract the
provisions of the Act. Apart from the fact that
the prosecutrix belongs to the Pardhi
community, there is no other evidence on
record to prove any offence under the said
enactment. The High Court has also not
noticed any evidence to support the charge
under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
and was perhaps persuaded to affirm the
conviction on the basis that the prosecutrix
belongs to a Scheduled Caste community.
The conviction of the appellants under
Section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 must, therefore, be set aside."
16. On the basis of above discussion
it is explicitly clear that charged offence
3 All]
 Durga Singh Vs. State
1107
of mischief by fire had not been committed
because victim was a member of SC/ST
community. This offence appears to have
been committed only because of dispute of
title and possession of land over which
victim's house is standing. In such a case
offence punishable under section 3(2)(iv) of
Scheduled Castes or Schedule Tribes Act is
not been committed. Therefore the finding of
of trial Court holding the appellant guilty for
the offence under SC/ST Act is erroneous
and is liable to be set aside.
17. In view of the submission on
behalf of appellant on quantum of
sentence,
the only question to be
considered is whether the sentence of life
for charge u/s 436 IPC in present case is
reasonable or excessive?
18. The Section 235 of the Criminal
Procedure Code, 1973 reads :
"(1) After hearing arguments and
points of law (if any), the Judge shall give
a judgment in the case.
(2) If the accused is convicted, the
Judge shall, unless he proceeds in
accordance with the provisions of Section
360, hear the accused on the question of
sentence, and then pass sentence on him
according to law".
19. In present case after the verdict of
conviction the accused-appellant had, at the
time of hearing on point of quantum of
sentence, all relevant factors available and
presented, should have been considered for
determining the appropriate amount of
sentence. But the trial Court had not
considered them because the Sessions Judge
had erroneously connected punishment of
charge under section 436 IPC with that of
section3(2)(iv) SC/ST Act and awarded
minimum prescribed punishment for said
offence. Thus the Additional Sessions Judge,
in the instant case, had not complied with the
obligation which Section 235(2) imposes. As
discussed above, in this case offence of
section 3(2)(iv) SC/ST Act is not made out,
therefore punishment should have been for
charge u/s 436 IPC only and that too after
affording opportunity of pre-punishment
hearing as discussed above. Such hearing
was made during appeal.
20. The sentencing procedure is given
in the Code of Criminal Procedure, which
provides broad discretionary sentencing
powers to judges. In the absence of an
adequate sentencing policy or guidelines, it
comes down to the judges to decide which
factors to take into account and which to
ignore. From various judgments of Hon'ble
Apex Court it has been established that at the
time of sentencing the Courts should
consider the aggravating circumstances relate
to the crime while mitigating circumstances
relate to the criminal.A balance sheet cannot
be drawn up for comparing the two.The
considerations for both are distinct and
unrelated. It is erroneous for the court to
mechanically
proceed
to
impose
any
sentence without taking into account all
aggravating and mitigating circumstances.
21.
Now the matter is limited to the
proper punishment for the offence u/s 436 IPC,
and we have to consider about the appropriate
sentence for the appellant in this case. For it
aggravating circumstances relating to the crime
while mitigating circumstances relating to the
criminal has to be considered. From facts and
circumstances of the case before us, as regards
aggravating circumstance is concerned it is clear
that appellant had acted according to wishes of
his father Neebar Singh, without using his mind
and had helped his father in putting fire the
house of victim/ informant, which resulted in the
loss of shelter to victim. So far as mitigating
1108
 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances are concerned, taking note of
various factors including the age of the young
appellant-accused being a rustic poor villager of
about 22-23 years at the time of the incident (his
age being 36 years at time of his statement u/s
313 CrPC in year 2008) which cannot be treated
as very mature, he is the only bread winner of his
house, it is his first guilt. Apart from it he hails
from such poor family that he cannot afford
expensesof a lawyer, so he was provided help of
Amicus Curie at the expenses of State, the award
of 10 years R.I. is excessive. These points were
not considered at the time of awarding the
punishment; and the said sentence was awarded,
which should be mitigated. This contention of
learned Amicus Curie for the appellant cannot
be ignored that during trial and then after
conviction appellant had suffered sufficient time
in incarceration (more than six years) which
would have taught him appropriate lesson to
refrain from such overt acts.
22. While we see no reason to differ
with the findings recorded by the trial court
regarding charged offence of section 436 IPC,
we do see substance in the argument raised on
behalf of the appellants that keeping in view
the
prosecution
evidence,
the
above
mentioned
aggravating
and
mitigating
attendant circumstances, the age of the
accused and the fact that they have already
been in jail for a considerable period, the
Court should take lenient view as far as the
quantum of sentence is concerned. Keeping in
view the attending circumstances, we are of
the considered view that ends of justice would
be met if the punishment awarded to the
appellant is reduced. So, it appears appropriate
that in present case the sentence should not
exceed more than seven years' imprisonment.
23. In view of above facts and
discussion, the order of conviction u/s
3(2)(iv) Schedule Tribes (Prevention of
Atrocities) Act, 1989 is set aside; but the
conviction u/s 436 IPC imposed on the
appellant is hereby confirmed. For the
charge u/s 436 IPC the punishment of
sentence of imprisonment of 10 years is
modified to rigorous imprisonment of 7
years. With this modification of sentence,
the appeal stands disposed off.
24. Let the copy of this judgment be
sent to Sessions Judge, Basti of ensuring
compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE YASHWANT VARMA, J.
C.M.W.P. No. 34833 of 2014
with
Writ-C No. 32572 of 2014, W.P. No. 46000
of 2014, W.P. No. 46363 of 2015, W.P. No.
50574 of 2014, W.P. No. 53568 of 2014,
W.P. No. 21180 of 2015, W.P. No. 23902 of
2015, W.P. No. 29674 of 2015, W.P. No.
44625 of 2015, W.P. No. 49108 of 2015,
W.P. No. 49118 of 2015, W.P. No. 49123 of
2015, W.P. No. 49132 of 2015, W.P. No.
49136 of 2015, W.P. No. 49140 of 2015,
W.P. No. 49143 of 2015, W.P. No. 49147 of
2015, W.P. No. 49151 of 2015, W.P. No.
34931 of 2014, W.P. No. 35050 of 2014,
W.P. No. 35407 of 2014, W.P. No. 35824 of
2014 and W.P. No. 36537 of 2014
Anand Kumar Yadav & Ors. ...Petitioners
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare, Ms.
Saumya Mandhyan, Sri Arvind Srivastava, Sri
Rahul Agarwal, Sri Ashok Kumar Dubey, Sri
Himanshu Raghave, Sri Indrasen Singh