Shri G.G. Bade.The appeal is already listed for final hearing today.The appeal is taken up for final hearing.2] The appellant assails the judgment and order dated 05.04.2002 in Sessions Case 33/1998, by and under which, the Ist::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 2 Ad hoc Additional Sessions Judge, Gadchiroli convicted the appellant for offence punishable under section 435 and 436 of Indian Penal Code and imposed sentence of rigorous imprisonment for three years and payment of fine of Rs.500/-.3] Shri G.G. Bade, the learned counsel appearing for the appellant (hereinafter referred to as "the accused") would submit that the judgment impugned is manifestly erroneous and occasions serious miscarriage of justice.He would urge that the prosecution has made no attempt to prove the very sine quo non for constituting offence under section 435 or 436 of Indian Penal Code.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.-- Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards [or (where the property is agricultural produce) ten rupees or upwards], shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.Classification of offence.-- The offence under this section is cognizable, bailable, non-compoundable and triable by Magistrate of the first class.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 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.Classification of Offence.-- The offence under this section is cognizable, non-bailable, non- compoundable and triable by Court of Session.The first ingredient which the prosecution is required to establish is that mischief is committed.Mischief is defined in::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 4 section 425 of I.P.C. thus:::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 5::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::The prosecution was therefore, statutorily mandated to prove that the accused set afire his own hut with the intention to cause, or with the knowledge that he is likely to cause, wrongful loss or damage to the public or to any person.7] I have scrutinized the record to ascertain as to what weighed with the learned Sessions Judge in recording a finding that charge under section 435 and 436 of I.P.C. is brought home by the prosecution, but in vain.The prosecution case is that the accused set afire to his own hut which admittedly was located on government land.It is not the case of the prosecution that there were any hut or dwelling around or in the immediate vicinity and that the accused intended to cause damage or loss to some other building or dwelling or property and with such intent set afire his own hut.The learned A.P.P. makes an attempt to support the judgment impugned by contending that one Shamrao Kisan Dhore had kept his tur sticks (fodder) in the open land in the vicinity of the hut of the accused.The person who allegedly kept the fodder near the hut of the accused is not examined.Nothing is brought on record by the prosecution to suggest much less conclusively prove that the intent of the accused in burning down his own hut was to cause loss to any other person.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 6 8] I must also record, that three witnesses who allegedly witnessed the incident were examined by the prosecution.Out of the three witnesses P.W.1 admits in the cross-examination that he did not witness the accused doing the act.Even P.W.5 also admits in the cross-examination that he did not witness the accused burning down the hut.He states that he heard shouts, saw the accused running and some persons chasing him and therefore, joined the chase.I must observe, that not only is the prosecution a miserable failure in proving the basic ingredient of section 435 and 436 of I.P.C., as noted supra, even the evidence on record is grossly insufficient to prove, much less proved beyond reasonable doubt that accused set afire to his own hut.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::9] I am afraid that the judgment impugned is manifestly erroneous.It is a matter of some concern that neither the learned Sessions Judge nor the battery of defence counsel, applied mind to the scope and ambit of section 435 and 436 of I.P.C. nor did they make any attempt to find out or ascertain from the material on record as to whether the basic ingredient of 435 and 436 of I.P.C., which is that mischief must be committed, is established.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 7 10] The appeal is allowed.The accused is acquitted of offence punishable under section 435 and 436 of I.P.C.::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 :::

Cited provisions: Section 436 in The Indian Penal Code