JUDGMENT 1. - This appeal is directed against the judgment passed by the Additional Sessions Judge, No. 2, Jodhpur dated December 18, 1976 by which the appellants were convicted for the offences under sections 147 and 452 Indian Penal Code and sentenced to one year's rigorous imprisonment and a fine of Rs 200/-, in default of payment of fine to undergo three months rigorous imprisonment on the first count & two year's rigorous imprisonment & a fine of Rs. 200/- in default of payment of fine to undergo three months rigorous imprisonment on the second count. Bhera Ram appellant was also convicted for the offence under section 436 Indian Penal Code and the remaining appellants or the offence under section 439/149 Indian Penal Code and sentenced to three year's rigorous imprisonment and a fine of Rs. 200/-, in default to undergo three months rigorous imprisonment with an order that the substantive sentences awarded to the appellants shall run concurrently. 2. Briefly stated the facts of the case giving rise to this appeal are as under : There was a dispute relating to some 'Bada' between complainant Mehram (P.W. 1) and Bhera Ram son of Mangla Ram, his neighbour Sohanlal happens to be the son of Bhera Ram and remaining appellants his friends. On February 4, 1976 Mehram was sleeping in the `chhapra' used as kitchen, his wife Smt. Birju and brother Shivlal in the `sal' and his mother in the `ovra'. At mid night appellants Bhera Ram, Chenaram and Sohanlal armed with lathies along with the remaining appellants went to the house of Mehram and asked him to come out so that they may set him right for making a construction in the `Bada'. Mehram was dragged out of the `Chhapra'by Bhera Ram, Chenaram and Sohanlal who inflicted lathi blows to him. The remaining appellants gave fist blows to him. Bhera Ram then set fire to the `chhapra' with a match stick. On Mehram's raising a cry' Jet Ram, Peera Ram, Pema Ram and Tulchha Ram reached the site. Mehram went to police station Mathania and lodged the report there a few hours after the occurrence on February 5, 1976. Case against the appellants was registered. Devilal Ojha (P.W. 10), Station house officer of that police station went to the site on February 2, 1976 and made necessary investigation. On February 5, 1976 Dr. Mehram went to police station Mathania and lodged the report there a few hours after the occurrence on February 5, 1976. Case against the appellants was registered. Devilal Ojha (P.W. 10), Station house officer of that police station went to the site on February 2, 1976 and made necessary investigation. On February 5, 1976 Dr. S.C. Sinha (P.W. 8) examined Mehram and noted two abrasions and one bruise on his person. 3. Upon completion of investigation, chargesheet against the appellants was filed in the court of Munsif and Judicial Magistrate, Jodhpur District. The learned Magistrate committed the appellants to the court of sessions to stand their trial. The case was transferred to the Court of Additional Sessions Judge, No. 2, Jodhpur who proceeded with the trial. Prosecution examined eleven witnesses in all. The appellants in their statements under sections 313 of the Code of Criminal Procedure totally denied the allegations levelled against them and stated that because of sugar matter witnesses are inimical to them and have deposed against them. Two witnesses were examined from the defence side. The learned trial Judge held the prosecution case established and passed the judgement under appeal. 4. Mr M.M. Singhvi, learned counsel for the appellant strenuously contended that the prosecution witnesses on whom the learned trial Judge has placed reliance,are either family members of the complainant or interested in him. That, there is not even an iota of evidence to be established that it was Bhera Ram or any one of the appellants who had set fire to the `chhapra'. Mr. Singhvi stressed, that, if the `chhapra' would have been set to fire some articles must have been burnt and the Investigating Officer would have taken their reminiscent in possession as an evidence of the offence. It has also been contended that there is no evidence that the appellants entered into any building so as to bring home the guilt under section 452 Indian Penal Code and therefore, the conviction on all the counts deserves to be set aside. 5. Controverting these contentions, the learned Public Prosecutor submitted that from the evidence on record it is duly established that all the appellants, with a common object to give a beating to the complainant, had gone to his house and one of them viz. 5. Controverting these contentions, the learned Public Prosecutor submitted that from the evidence on record it is duly established that all the appellants, with a common object to give a beating to the complainant, had gone to his house and one of them viz. Bhera Ram set fire the `chhapra' causing loss to the complainant and therefore, there is full justification in the conviction and sentences awarded to the appellants. 6. Mehram (P.W. 1) has stated about the dispute regarding the `Bada' between him and Bhera Ram son of Mangla Ram. He has also stated about the seven appellants going to the court-yard and dragging him out of the `chhapra'. According to him three of them viz. Bhera Ram, Chena Ram and Sohanlal were armed with lathis. 7. Smt. Birju (P.W. 2) wife of Mehram (P.W. 1) has supported her husband and stated about all the appellants going to her house and giving a beating to her husband. Jet Ram (P.W. 11) has stated that he had reached the house of Mehram first of all on hearing his cry. He has stated about the presence of all the appellants there at the site Peera Ram (P.W. 3) and Pema Ram (P.W. 5) have supported him. Tulchha Ram (P.W. 4) has been declared hostile by the prosecution. Shiv Lal brother of the complainant has also stated about the appellants going to his house and giving a beating to his brother Mehram and Bhera Ram setting fire to the `chhapra'. 8. The learned counsel for the appellants has attacked the truth fullness of the prosecution case on the ground that the first information report did not reach the concerned Magistrate till February 9, 1976 and there is no explanation for the same. According to Mr. Singhvi, it strengths the defence plea that a false case was made out against the appellants simply because of their being interested in Bhera Ram son of Manglaram who had a quarrel with the complainant Mehram regarding the `Bada'. It has also been urged that if there would have been any intention to take revenge for construction the Bada.Bhera Ram son of Mangla Ram would have been there. It has also been urged that if there would have been any intention to take revenge for construction the Bada.Bhera Ram son of Mangla Ram would have been there. This is correct that Bhera son of Mangla Ram with whom the dispute relating to Bada' was, is not amongst the accused, but the prosecution case is that Sohan Lal happens to be the son of Bhera Ram and other accused are said to be of the party of Bhera Ram son of Mangla Ram. This fact has been admitted by Bhera Ram son of Mangla Ram examined as D.W. 2 The statement of Mehram and other witnesses regarding the former sustaining injuries stands corroborated by the Medical Officer Dr S.G. Sinha (P.W. 8) who has noted two abrasions and one bruise on the person of Mehram. Mehram has stated that the miscreants asked him to come out and when he did not comply with their direction, three of them dragged him out of `chhapra' and all of them gave a beating to him. As to who entered the `chhapra' will be discussed later on. For the present suffice it to say that in view of the above discussions the seven appellants going to the house of the complainant is duly established. There asking Mehram to come out and then some of them dragging him out and giving a beating proves that they had formed an unlawful assembly, Offence under section 147 Indian Penal Code is thus made out against all the appellants and therefore, conviction for that count requires no interference. 9. So far as the offence under section 436 against Bhera Ram and 436/149 Indian Penal Code against the remaining appellants is concerned, the prosecution has failed to establish the charge. Mehram has stated, that, after his being dragged out of the 'chhapra' Bhera Ram set fire to it. Birju (PW 2) and Shiv Ram (PW 7), wife and brother of complainant respectively have also stated about Bhera Ram setting fire. Attention of these witnesses was drawn to their police statements where they have specifically stated that they did not know who had set fire to the `chhapra'. Birju (PW 2) and Shiv Ram (PW 7), wife and brother of complainant respectively have also stated about Bhera Ram setting fire. Attention of these witnesses was drawn to their police statements where they have specifically stated that they did not know who had set fire to the `chhapra'. Peera Ram (PW 3) Pema Ram (PW 5) and Jet Ram (PW 11) have stated at the trial that they had seen Bhera Ram setting fire to the `chhapra' but as the statement of Mehram goes, they could not have been in a position to see any body setting fire. Jet Ram (PW 11) according to the prosecution was first to reach the site. According to Mehram when Jet Ram (PW 11) and Peers Ram (PW 3) reached the site, the accused took to heels. Peera Ram (PW 3) has stated about his seeing Bhera Ram setting fire to the 'chhapra'. His attention was drawn to that portion of his police statement where he had expressed his ignorance about the person setting fire to the `chhapra'. Similarly at portion C to D of his police statement Ex. D.5 Jet Ram has stated that he had not seen anybody setting fire to the `chhapra'. The witnesses disowned the version- From the above discussion, it is clear that the earliest version of the complainant as well the prosecution witnesses, who had claimed to have seen Bhera Ram setting fire to the `chapra' was that they did not know who was the person who set fire to the `chhapra'. The learned trial Judge while alive to the inconsistency between the statements of the witnesses before the police and at the trial, had given weight to the fact that in the first information report there was mention of Bhera Ram setting the fire. The learned counsel for the appellants in this concern again emphasised that the first information report not being sent for four days to the concerned Magistrate throws doubt on its truthfulness. Be as it may, the police statement of Mehram is inconsistent with the statement at the trial that it was Bhera Ram who had set fire to the `chhapra'. It is also pertinent to note that except a few `dokas' (pieces of sticks) no article was found to have been burnt. Be as it may, the police statement of Mehram is inconsistent with the statement at the trial that it was Bhera Ram who had set fire to the `chhapra'. It is also pertinent to note that except a few `dokas' (pieces of sticks) no article was found to have been burnt. If fire was set to the `chhapra' in which the articles for preparing food and utensils to be used in the kitchen were, then some material to substantiate the case must have been found at the site. The Investigating Officer has clearly stated that except a few burnt `dokas' he did not find any sign of the `chhapra' buty being at the time he inspected the site on the next morning. The learned Public Prosecutor has submitted that even if the prosecution case about Bhera Ram setting the fire is not believed still there being an unlawful assembly and as some member of it had set fire to the `chhapra' all of them including Bhera Ram, should be held guilty for the offence under section 436 read with 149 Indian Penal Code. The argument has no force. The circumstances do not suggest that the common object of the unlawful assembly was to set fire to the `chhapra'. The statement of the Investigating Officer throws doubt on the very fact of the `chhapra' being set to fire in the night. If it would have been so, as stated above, some incriminating article such as reminiscent of the burnt articles etc. would have been there and the Investigating Officer would have collected that evidence. The conviction of Bhera Ram for the offence under section 436 Indian Penal and remaining appellants for the offence under section 436/149 Indian Penal Code is therefore, not sustainable. 10. The prosecution case is that the appellants went to the house of Mehram with the common object of giving a beating to him. Mr. Singhvi emphatically argued that prosecution has failed to establish that appellants have entered the place which may fall within the definition of a `building' so as to bring the case within the preview of section 452 Indian Penal Code. 11. According to Mehram there are three comparts in his house. One is the `chhapra' used as kitchen where he was sleeping. Other is the `seal' where his wife, children and brother were sleeping. Third is the `ovra' where his mother was sleeping. 11. According to Mehram there are three comparts in his house. One is the `chhapra' used as kitchen where he was sleeping. Other is the `seal' where his wife, children and brother were sleeping. Third is the `ovra' where his mother was sleeping. There is no allegation about any of the appellants entering in the `sal' or the `ovra'. In examination in chief Mehram has stated about Bhera Ram asking him to come out, then Bhera Ram going from over the well and opening the door and all the accused going inside. In cross-examination he has stated about the accused being in the court-yard (chawk) and Bhera Ram and Chenaram dragging him from inside the `chhapra'. There is no other evidence to point out as to who were the persons who had actually entered the `chhapra' to bring Mehram out, where he was given a beating. Even taking the statement of Mehram to be correct only Bheraram and Chenaram had entered the `chhapra' to take him out and all others were there outside in the court yard. 12. The question therefore, emerging for determination is, whether `chawk' (court-yard) where the appellants were standing falls within the definition of a `building' to bring the case within the ambit of section 452 Indian Penal Code. Whether a place can be termed as a `building' depends upon the facts and circumstances of a particular case. As provided in section 442 Indian Penal Code, a person is said to commit `house trespass' if he commits `criminal trespass' by entering into the building used as a human dwelling or as a place of worship or as a place for the custody. There is distinction between a place for keeping the property and custody of the property. The `chawk' in the present case having an easy access cannot be said to be a place for the custody of property in the absence of any evidence to that effect. The point as to what the term `building' means arose in the case of Makhan & others v. Emperor, AIR (32) Allahabad 81 and it was observed that the work `building' within the meaning of section 452 Indian Penal Code must always be a question of degree and circumstances and it is, therefore, impossible to lay down a general definition. The point as to what the term `building' means arose in the case of Makhan & others v. Emperor, AIR (32) Allahabad 81 and it was observed that the work `building' within the meaning of section 452 Indian Penal Code must always be a question of degree and circumstances and it is, therefore, impossible to lay down a general definition. In that case the house in question had an open space (sehen) in the front which was demarcated or surrounded by some sort of kacha boundary wall having no doors or door leaves. In order to reach the rooms of the house one had to pass through that auter `sehen' which was not covered by any roof. That outer `sehan' was not considered to be a building so as to hold the accused guilty of house trespass. 13. In the case of Dalchand v. State, 1964 RLW 524 this court had an occasion to discuss the question whether the outer verandah of the house falls within the definition of a `building' used in section 452 Indian Penal Code. His Lordship dealing with the point observed, that it is difficult to accept an extreme view that every outer verandah is necessarily a building used as human dwelling or a as place for the custody of the property. His Lordship further observed that similarly, the other extreme that an outer verandah can never be such a building, cannot also be accepted. His Lordships also drew the distinction between the word `custody' and word `keeping' and held that the former requires a sense of security which would be wanting in the case of a shed, which is only ment to provide shelter from sun and rain and which has no doors etc. 14. `Chawk' in which the appellants are said to be in on way falls within the definition of a building and therefore, only those persons who had entered the `chhapra' can be held guilty for the offence of house trespass. The rest of the appellants can only be held guilty for `criminal trespass'. 15. According to Mehram, Bhera Ram and Chenaram had dragged him from inside the chhapra' and then he was given a beating. Hence only Bhera Ram and Chenaram should be held guilty for the offence under section 452 Indian Penal Code.The remaining appellants are guilty only for the offence under section 447 Indian Penal Code. 16. 15. According to Mehram, Bhera Ram and Chenaram had dragged him from inside the chhapra' and then he was given a beating. Hence only Bhera Ram and Chenaram should be held guilty for the offence under section 452 Indian Penal Code.The remaining appellants are guilty only for the offence under section 447 Indian Penal Code. 16. As a result of the above discussion, the conviction of all the appellants for the offence under section 147 Indian Penal Code is well founded. The conviction for the offence under section 436 Indian Penal Code against Bhera Ram and section 436/149 Indian Penal Code against the remaining appellants is not sustainable. The conviction of Bheraram and Chanaram for the offence under Section 452 Indian Penal Code is maintainable but the remaining appellants can be held guilty only under section 447 Indian Penal Code and not under section 452 Indian Penal Code. 17. The learned counsel for the appellants submitted that as the appellant Bhera Ram was below twenty years of age and other accused were also of young age, a lenient view may be taken in the matter. Age of Bhera Ram at the time of his statement under section 313 of the Code of Criminal Procedure is twenty years. Mr. Singhvi submitted that the matter relates to the year 1976 and there are only three simple injuries i.e. two abrasions of very small dimensions and one bruise on the person of Mehram, a lenient view may be taken and the appellants may not be sent behind the bars after the lapse of a period of about six years. 18. In view of the facts and circumstances of the case, the nature of the injuries and the lapse of such a long period since the date of the offence, I am of the opinion that a lenient view is desired and the ends of justice would meet if the appellants who are held guilty for the offence under section 147 and 447 Indian Penal Code only are sentenced to fine only and not to any imprisonment. 19. Consequently, the appeal is partly allowed. The convictions of Bhera Ram for the offence under section 436 Indian Penal Code and the remaining appellants for the offence under section 436/149 Indian Penal Code is set aside. The conviction of appellant Sohanlal, Chokharam, Bagra Ram, Harchand and Bhagirath for the offence under section 452. 19. Consequently, the appeal is partly allowed. The convictions of Bhera Ram for the offence under section 436 Indian Penal Code and the remaining appellants for the offence under section 436/149 Indian Penal Code is set aside. The conviction of appellant Sohanlal, Chokharam, Bagra Ram, Harchand and Bhagirath for the offence under section 452. Indian Penal Code is set aside and they are instead of convicted for the offence under section 447 Indian Penal Code. The conviction of the appellants for the offence under section 147 Indian Penal Code and that of Bheraram and Chenaram for the offence under section 452 Indian Penal Code is maintained. The substantive sentences of all the appellants for the offence under section 147 Indian Penal Code are set aside. The sentence of fine of Rs. 200/- each in default to undergo three months rigorous imprisonment for this charge is maintained. Appellants Chokha Ram. Sohan Lal, Bagra Ram, Harchand and Bhagirath Ram are sentenced to a fine of Rs. 100/-, in default of payment to undergo two months rigorous imprisonment for the offence under section 447 Indian Penal Code. The sentence of imprisonment of Bheraram and Chenaram for the offence under section 452 Indian Penal Code is reduced to six months rigorous imprisonment. The sentence of fine of Rs. 200/-, in default to undergo three months rigorous imprisonment for this charge is maintained. All the appellants are on bail. The Chief Judicial Magistrate, Jodhpur is directed to issue warrant of arrest to effect the arrest of Bheraram and Chhenaram and send them to custody to suffer the sentence of imprisonment awarded to them. Their bail bonds are cancelled. Chokha Ram, Sohanlal, Bagra Ram, Har Chand and Bhagirath are given two month's time to deposit the amount of fine in the trial Court.Appeal Partly Allowed. *******