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Mangaraj Barik and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in53(1982)CLT515; 1982CriLJ1631
AppellantMangaraj Barik and ors.
RespondentState of Orissa
Cases ReferredState v. Nihal Singh
Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the..........question whether a school building would come under the expression '...any building, ...used as a human dwelling...' in section 442 of the i.p.c. the learned additional government advocate submitted that a school building would satisfy the test of a building used as a human dwelling and in support of his contention he relied on the' state v. nihal singh 1971) 73 pun lr 440. in that case the meaning of the expression 'any building used as a human dwelling' in section 380, i.p.c. was considered in the context of a railway waiting-room. it was observed:there can be no dispute that a railway waiting-room is a building. the further point for consideration is whether it is used as a human dwelling. the contention of mr. gour, is that the word 'dwelling' in section 380. indian penal code, has.....
Judgment:
ORDER

B.N. Misra, J.

1. The petitioners have been convicted under Section 448, I.P.C. and sentenced to pay a fine of Rs. 300/- each, in default, to simple imprisonment for one month each.

2. The prosecution case may be briefly stated. P. W. 10 is the Head Master of Gondia High School and P. Ws. 8 and 9 are the teachers of that school. It is alleged that on 9-5-1975 at about 10.30 a. m. while examination was in progress inside the school a group of persons including the petitioners created disturbances at the gate of the school, then entered inside the school premises and the examination halls and snatched away answer papers from the examinees. P. W. 10 lodged F.I.R. at the police Station at 9 p. m. on the same day. The Police registered the present case against the petitioners and after completion of investigation submitted charge sheet. The petitioners were prosecuted for offences under Sections 448, 323, 426 read with Section 34, I.P.C.

3. At the trial 12 witnesses were examined on behalf of the prosecution and none on behalf of the defence. The defence plea is one of denial. In their statements recorded under Section 313, Cr. P.C. the petitioners have stated that the witnesses have falsely deposed against them for political reasons, The learned Magistrate who tried the case found the petitioners guilty under Section 448, I.P.C. and sentenced them to simple imprisonment for one month each. The appeal filed by the petitioners was dismissed, but their sentences were reduced to fines of Rs. 300/- each.

4. Learned counsel for the petitioners has placed before the Court the evidence of witnesses. Out of the twelve witnesses p. Ws. 2, 3 and 6 had been declared hostile in the trial Court. The prosecution case rests on the evidence of P, Ws. 4, 5, 8, 9, 10 and 12. As already noted P. W. 10 is the Head Master of the school and ha has stated that on the day of occurrence the petitioners had entered the school premises, created trouble in the conduct of examination and had snatched away examination papers from some of the examinees. P. Ws. 8 and 9 who were on invigilation duty at the time of examination have stated that they had seen the petitioners at the school gate shouting slogans along with other villagers. Those two witnesses had not seen the petitioners entering inside the school premises. However P. Ws. 4, 5 and 12 have implicated all the four petitioners. According to these witnesses, these petitioners had entered inside the school premises, disturbed the conduct of examination and had snatched away examination papers. As observed by the learned appellate Judge p. Ws. 4 and 5 are independent witnesses and nothing has been elicited from them to suggest any motive on their part to depose falsely against the petitioners, P. W. 12 is a police constable who was camping inside the school and ha is another independent witness. There is no reason for him to implicate the petitioners on false grounds. The evidence of P. Ws. 4, 5, 10 and 12 has been accepted by both the Courts below and I see no reason to take a different view. Learned counsel for the petitioners has pointed out that in the examination of the petitioners under Section 313, Cr. P.C. the names of P. Ws. 5 and 10 were only disclosed by the learned Magistrate, but not the names of P. W. 4 and 12. The name of any witness need not have been put to the petitioners and in any case the omission to state the names of P. Ws. 4 and 12 cannot be said to have caused any prejudice to the petitioners as their attention had been drawn to the specific matters which appear in evidence against them. It is also urged on behalf of the defence that there was delay of 10 hours in lodging the F.I.R. Considering the nature of the occurrence and the manner in which it took place I do not think that the delay can be held against the prosecution. The assessment of evidence by the learned lower Courts and their conclusions are proper and correct.

5. Counsel had made submissions on the question whether a school building would come under the expression '...any building, ...used as a human dwelling...' In Section 442 of the I.P.C. The learned Additional Government Advocate submitted that a school building would satisfy the test of a building used as a human dwelling and in support of his contention he relied on the' State v. Nihal Singh 1971) 73 Pun LR 440. In that case the meaning of the expression 'any building used as a human dwelling' in Section 380, I.P.C. was considered in the context of a railway waiting-room. It was observed:

There can be no dispute that a railway waiting-room is a building. The further point for consideration is whether it is used as a human dwelling. The contention of Mr. Gour, is that the word 'dwelling' in Section 380. Indian Penal Code, has a restricted meaning, viz., a house or building used as a permanent residence, and that it does not include such public places where passengers may only rest for a while awaiting the arrival of their train.

It is true that one fact of the dictionary meaning of 'dwell' is 'to remain as in a permanent residence', 'to have one's abode to reside, But that is not the only connotation of the term, which is of wide amplitude and is used in several shades and senses. The O. E. i.e., the original appearance of the word in English (vide, Shorter Oxford Dictionary, Third Edition, and Webster's New International Dictionary, Second Edition), was 'dwellan' or 'dwelianakin to 'dull' - which originally meant to linger, delay, tarry.' In current use also, it retains the meaning, 'to abide, remain or linger for a time in a place or condition.' Thus construed, the term 'dwelling' in Section 380, Indian Penal Code, means a building, tent or vessel, in which a person lives, remains or lingers whether permanently or temporarily. A Railway waiting-room, therefore is a 'building used as a human dewelling' and a theft committed therein would be punishable under Section 380, Indian Penal Code.

As pointed out in the aforesaid decision, a building need not be used as a place of permanent residence in order to be considered as a human dwelling. In the present case there can be no dispute that the school is a building and on the strength of the reasoning adopted in the aforesaid decision, I would further hold that a school is a building used as a human dwelling within the contemplation of Section 442, of the I.P.C. I would therefore agree with the learned Courts below that the prosecution has fully brought home the charge under Section 448, I.P.C. against the petitioners.

6. This revision which has no merit is accordingly dismissed. The conviction and sentence of the petitioners are confirmed.


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