1 HIGH COURT OF MADHYA PRADESH, INDORE BENCH (SINGLE BENCH: HON'BLE SHRI JUSTICE S.K. SETH) Criminal Appeal No.787 of 1997 (1) Sutaria S/o. Nansingh Barela, (2) Revsingh S/o. Nansingh Barela, Both R/o. Village Jhamar, P.S. Pati, Distt. Khargone. ..APPELLANTS. V/s. State of M.P. through Police Station Pati, District Khargone. ..RESPONDENT. J U D G M E N T (Delivered on 29th November, 2011) PER SETH J : Being aggrieved by the judgment of conviction and sentence passed by the IInd Additional Session Judge, Barwani in S.T. No.50/1997, appellants have preferred this appeal. By the impugned judgment, appellants have been found guilty of offences punishable u/s. 436/34 of the Penal Code and have been sentenced to undergo 3 years' R.I. on each count with fine of Rs.1,000/- each with default stipulation. Out of the fine amount, Rs.1,000/- 2 was directed to be paid to Dongar Singh as compensation. 2. The prosecution case in nutshell was that in the night of 1.1.1997 four accused persons used abusive language causing annoyance to complainant Sayaribai (PW-5) and thereafter, they set fire to the hut of Dongar Singh. The incident was reported in the Police Station, Pati, District Khargone vide Exh. P/9, which set the investigation rolling. 3. After completing the investigation, charge-sheet was filed and accused were put to trial for offences punishable u/s. 294, 436/34 of the Penal Code. They denied the charges. They examined two defence witnesses. After considering prosecution evidence, Court below found that no offence u/s. 294 of the Penal Code was made out, therefore, acquitted all the accused persons of that charge. Court below further found that appellants are only guilty of the offences punishable u/s. 436 read with Section 34 of the Penal Code, therefore, convicted and sentenced them, as mentioned above. By the impugned judgment, Court below acquitted co-accused Balnya and Bhura. 4. We have heard rival submissions at length. Perused the record. 3 5. Counsel for appellants referring to the evidence of PW-1 – Devisingh; PW-2 – Khushyal and the evidence of Bedia (DW-1) submitted that no offence u/s. 436 of the Code was made out against the appellants as nobody had seen these two appellants causing mischief by fire. 6. We have carefully gone through the evidence available on record including the evidence of Devisingh (PW-1), Khushyal (PW-2) and Bedia (DW-1). It is pertinent to point out that PW-1-Devisingh and PW-2-Khushyal are the 'Panch' witnesses to 'Jabtinama' (Exh. P/2) and 'Nuksaninama' (Exh. P/1). They are not the witnesses to the incident, but from their evidence, it is clear that mischief by fire was committed and a hut belonging to Dongarsingh was destroyed. 7. It is now well settled that Section 436 is attracted when the mischief caused results in destruction of a building. The word 'building' does not suggest that it should either be brick-built or mud-built or a building of some such durable material, therefore, even a thatch hut made of rids and mud can be considered as a structure and is included within the meaning of expression 'building' if the same is found utilised for human dwelling or for custody of property. It would include even a temporary shelter. There is nothing on record to suggest that the 4 property lost/destroyed was not a building. The destruction of property is amply proved from the evidence of prosecution witnesses. 8. Counsel for appellants vehemently argued that nobody had seen the appellants putting fire to the building. We do not agree with this submission in the light of evidence of Sayaribai (PW-5) and Saykibai (PW-6). From their evidence it is clear that after finishing the dinner, both were sitting in the courtyard and saw the appellants in the light of a torch setting fire to the hut of Dongarsingh. It is also clear from their evidence that because of previous enmity appellants had adequate motive to commit an offence punishable u/s. 436 of Penal Code. Witnesses have clearly denied the suggestion that the property destroyed was at a distance from the house of Bedia and there is nothing to obstruct the view between the hut of Bedia and the destroyed property. We find that the evidence of Bedia (DW-1) is not at all reliable inasmuch as he had admitted in his cross-examination that he was not aware of any incident taking place in the night of 1.1.1997 and in fact, he had deposed in the Court as told by the appellant No.1-Sutaria. In fact, this gets support from the evidence of PW-6 who had stated that at the time of incident, Bedia was not in the village. Obviously, Bedia is not telling the truth and is trying to help the appellants by suppressing the truth. Thus, we 5 find no infirmity or perversity with the impugned judgment. 9. As a result, appeal fails and is hereby dismissed. The appellants are on bail. Their bail bonds are cancelled. Appellants are directed to surrender before the trial Court forthwith. They be taken back to custody for serving out remaining part of sentence. ( S.K. SETH ) J U D G E. Alok/