Bombay High Court
Ashok S/O Shrawan Urkude vs State Of ... on 7 September, 2017
Bench: R. B. Deo
apeal232.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.232 OF 2002
Ashok s/o Shrawan Urkude,
Aged about 26 years,
R/o Kurud, Tahsil Desaiganj,
District Gadchiroli. ....... APPELLANT
...V E R S U S...
State of Maharashtra, through
its P.S.O., P.S. Desaiganj,
District Gadchiroli. ....... RESPONDENT
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Shri G.G. Bade, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
7 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The accused is present along with learned counsel
Shri G.G. Bade. Hence, non-bailable warrant is recalled.
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
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 even
if the entire evidence is taken at face value, an offence punishable
under section 435 or 436 of I.P.C. is not made out. 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.
4] Shri Jawade, the learned Additional Public Prosecutor
would support the judgment and order impugned.
5] Since the learned Sessions Judge has recorded a
finding that the accused is guilty of offence punishable under
section 435 and 436 of the Indian Penal Code, it would be
apposite to consider the scope and ambit of the aforesaid
provisions. Sections 435 and 436 of I.P.C. read thus:
435. 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.
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 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
section 425 of I.P.C. thus:
425. Mischief.-- Whoever with intent to cause,
or knowing that he is likely to cause, wrongful loss or
damage to the public or to any person, causes the
destruction of any property, or any such change in any
property or in the situation thereof as destroys ad
diminishes its value or utility, or affects it injurious,
commits "mischief".
Explanation 1.-- It is not essential to the offence
of mischief that the offender should intend to cause loss
or damages to the owner of the property injured or
destroyed. It is sufficient if he intends to cause, or
knows that he is likely to cause, wrongful loss or
damages to any person by injuring any property,
whether it belongs to that person or not.
Explanation 2.-- Mischief may be committed by
an act affecting property belonging to the person who
commits the act, or to that person and others jointly.
6] The accused is charged with burning down his own
hut. Explanation 2 to section 425 of I.P.C. clearly clarifies that
mischief may be committed by an act affecting property belonging
to the person who commits the act. A person who sets afire his
own property may be held guilty of committing mischief.
But then, the sine quo non is that the act must be with intent to
cause, or knowing that he is likely to cause, wrongful loss or
damage to the public or to any person.
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.
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. The only eye witness who supports the
prosecution case that the accused burnt down the hut is P.W.2.
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.
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.
10] The appeal is allowed. The accused is acquitted of
offence punishable under section 435 and 436 of I.P.C.
11] The bail bond stands discharged.
12] The fine amount paid, if any, by the accused shall be
refunded to him.
JUDGE
NSN
