Orissa High Court

Jagannath Bindhani vs State Of Orissa on 25 September, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.417 of 1994
                             AND
                        CRA No.366 of 1994

(In the matter of an application under Section 374(2) read with Section
382 of the Criminal Procedure Code, 1973)

                        CRA No.417 of 1994

Jagannath Bindhani                 .......                  Appellant

                                -Versus-

State of Orissa                   .......                 Respondent

CRA No.366 of 1994

Raju Bhukta and another ....... Appellants

-Versus-

State of Orissa ....... Respondent For the Appellants : Mr. D.P. Dhal, Senior Advocate

For the Respondent : Mr. Sarathi Jyoti Mohanty, Additional Standing Counsel

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 05.08.2025 :: Date of Judgment: 25.09.2025

S.S. Mishra, J. Both the Criminal Appeals are directed against the

judgment dated 07.10.1994 passed by the learned Sessions Judge,

Phulbani, in S.T. No. 43 of 1994, whereby the appellants Raju Bhukta

and Bimba Bhukta were convicted under Sections 436/34 and 452/34 of

the IPC. They were sentenced to 5 years of rigorous imprisonment and

fined Rs. 1,000/- each, with an additional 3 months of rigorous

imprisonment for non-payment of fine. Appellant Jagnnath Bindhani was

also convicted under Section 452/34 IPC and sentenced to 2 years of

rigorous imprisonment, along with a fine of Rs. 1,000/-, with an

additional 3 months of rigorous imprisonment for non-payment of fine.

Since the impugned judgment is common, both appeals were heard

together and are disposed of by this common judgment.

2. Heard Mr. D.P. Dhal, learned Senior Advocate, for the appellants

and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for

the State.

3. The prosecution case, in brief, is that on 02.08.1993 at about 7:00

P.M., the informant Jayanti Behera (P.W.3) was sitting on the verandah

of her house situated in village Dangulu, P.S. Phulbani Sadar, along with

her mother Mohini Behera (P.W.4) and brother Narayan Behera. At that

time, the accused persons, namely Raju Bhukta, Bimba @ Bimbadhar

Bhukta, Jagannath Bindhani and Pratap Bhukta, being members of the

same group and sharing a common intention, approached the house.

4. It is alleged that Jagannath Bindhani first trespassed into the house

and when Jayanti followed him inside and protested, he pushed her.

Thereafter, Raju Bhukta also entered the house and assaulted Jayanti by

giving fist blows and kicks. Out of fear, Jayanti, her mother, and brother

fled towards a nearby hillock while the accused persons chased them for

some distance before returning to the house. From their place of hiding,

the informant and her mother allegedly saw Raju Bhukta and Bimba @

Bimbadhar Bhukta setting fire, as a result of which the entire dwelling

house was gutted.

5. The same night, Jayanti reported the matter at the Phulbani Fire

Station. The Fire Station Officer Sukanta Sethi (P.W.6) with his staff

rushed to the spot and extinguished the fire. During investigation, the

police seized burnt straw, split wood, ash, and other remnants from the

place of occurrence, as well as the blouse produced by Jayanti. Dr.

P.W.5 examined Jayanti on the following day and found two bruises and

one abrasion on her body, which were consistent with assault by fists and

kicks.

6. On completion of investigation, charge-sheet was filed against the

accused persons for offences punishable under Sections 452/34 and

436/34 IPC, and additionally against Raju Bhukta under Section 354

IPC. At trial, the prosecution examined seven witnesses, including P.W.3

Jayanti, P.W.4 Mohini, P.W.5 the doctor, P.W.6 the Fire Station Officer,

and P.W.7 the Investigating Officer. The defence denied the allegations

and examined D.W.1, who claimed that the burnt structure was not the

house of the informant but a hut used for illicit liquor business.

7. The learned trial Court, by judgment dated 07.10.1994, acquitted

Pratap Bhukta of all charges and acquitted Raju Bhukta of the charge

under Section 354 IPC. However, Raju Bhukta and Bimba @ Bimbadhar

Bhukta were convicted under Sections 436/34 and 452/34 IPC, while

Jagannath Bindhani was convicted under Section 452/34 IPC. The

relevant portion of the aforesaid judgment is extracted herein below:-

"17. The evidence of p.w.3 has abundantly proved the factum that the accused Raju Bhukta and Bimba Bhukta did cause the mischief by setting fire to the dwelling house of Jayanti Behera.

18. Thus on the cumulative analysis, I am of the view that prosecution has been able to bring home the offence U/s. 436/34 IPC. and 432/34 IPC. against accused Raju Bhukta and has Bimbadhar Bhuta. Further prosecution has also been able to bring home the offence U/s. 452/34 IPC. against accused Jagannath Bindhani. Thus, accused Raju Bhukta, Bimba Bhukta and Jagannath Bindhani have been found guilty U/Ss. 452/34 IPC. and further accused Raju Bhukta and Bimba Bhukta has been guilty of the offence U/s. 436/34 IPC. and are convicted thereunder.

Accused Pratap Bhukta is found not guilty either for the offence U/s.452/34 IPC. or for the offence U/s.436/34 IPC., and acquitted therefrom by virtue of operation of section 235 Cr.P.C. and is set at liberty forthwith. Further accused Raju Bhukta has not been found guilty for the offence U/s.354 IPC. and is acquitted therefrom by virtue of op-eration of section 235 Cr.P.C."

8. Mr. Mohanty, learned Additional Standing Counsel, supported the

judgment of the learned trial Court. He argued that the evidence of

P.W.3 and P.W.4 is natural and consistent and finds support from the

contemporaneous fire station entry as well as the testimony of P.W.6, the

Fire Station Officer, who reached the spot soon after the incident and

confirmed that the house had been set ablaze. The medical evidence of

P.W.5 corroborates the assault on Jayanti. The discrepancies pointed out

by the defence are minor in nature and do not affect the substratum of

the prosecution case. The trial Court, on proper appreciation of evidence,

rightly convicted Raju Bhukta and Bimba @ Bimbadhar Bhukta under

Sections 436/34 and 452/34 IPC, and Jagannath Bindhani under Section

452/34 IPC.

9. Upon careful scrutiny of the evidence adduced, this Court finds

that the prosecution case rests substantially on the testimony of P.W.3,

the informant Jayanti Behera, who alleged that the accused persons,

including Raju Bhukta, Bimba @ Bimbadhar Bhukta, Jagannath

Bindhani, and others, had trespassed into her house and thereafter set fire

to the thatched dwelling. However, certain material discrepancies arise in

the evidentiary record.

10. P.W.4, the mother of the informant, who was projected as an eye-

witness, did not support the case of the prosecution and was declared

hostile. She clearly stated that she had not seen as to who set fire to the

house. P.W.5, the doctor, found simple injuries on the person of P.W.3,

which could have been caused by fist blows or even by a fall. Thus,

while the injuries corroborate some physical altercation, they do not by

themselves prove the act of arson alleged against the accused. P.W.6, the

Fire Station Officer, deposed that when the informant reported the matter

at the Fire Station, she had not specifically stated that her own house had

been gutted by fire, nor did she name any particular person as

responsible for setting fire. This statement materially weakens the

prosecution version that the accused persons were specifically identified

as the perpetrators of the fire.

11. The FIR itself named 5 accused, along with 22-25 others, as

having been involved, which reflects a tendency towards general and

omnibus allegation. In the course of the trial, Pratap Bhukta was

acquitted, which further casts doubt on the credibility of the broad

allegations.

12. In the above circumstances, this Court is of the opinion that the

essential ingredients of Section 436 IPC, namely, setting fire to a

dwelling house, are not established beyond reasonable doubt. At best, the

evidence indicates that there was an act of mischief by fire causing

damage to property. Such an act appropriately attracts the provisions of

Section 435 IPC, which deals with mischief by fire or explosive

substance with intent to 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, which is a lesser and more fitting

offence in the facts proved. Whether the offence under Section 436 IPC

is made out or not, I have perused the Sections 435 and 436 of the IPC,

which read as under: -

"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.

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."

13. In a similar case, Harchand Ram vs State Of Rajasthan, reported

in 2015(3) WLN 36 (Raj.), the Court held thus:-

"Upon perusal of above Section 436 it is abundantly clear that whoever commit mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby causes, 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. Applying above Section upon evidence of the present case it emerges that the quarrel took place in the agricultural land of Khasra No.1619 and 1624 for which partition suit was pending and all the accused and complainant party were co-sharer of the land in question and they were cultivating their share of land. The (complainant) co- sharer Khiya Ram wants to cultivate more land than his share so he started interference in the possession of co-tenant Harchand Ram and Pabu Ram. The accused Harchand Ram, Achala Ram, Jagdish and Pabu Ram filed a suit for declaration, partition and injunction in the court of Assistant Collector, Headquarter,Jodhpur alongwith an application for temporary injunction. Upon application filed for temporary injunction, an order was passed on 9.8.2000 whereby direction was isused to maintain the status quo regarding possession and on the date on which the occurrence took place, the order was in existence. The aforesaid fact clearly reveal that both the parties were having their share in the land in question where occurrence took place. The only allegation is that out of 4 Jhupa of Khiya Ram, one Jhupa was burnt due to fire set by the accused appellants in the temporary boundary. The question arose whether that Jhupa can be treated to be building so as to convict the applications for offence under Section 436 IPC. The Jhupa which is said to have been burnt by the fire alleged to have been set by

the accused appellant was not used for residence and as per the complainant due to fire of Jhupa the total property of Rs.2,000-3,000/- was damaged, but no reliable and trustworthy evidence of assessment of damage is produced to accept the cost of loss. Undoubtedly, the Section 436 IPC contemplates the offence of mischief by fire with intention to cause destruction of any building, which is ordinarily used as a place of worship or a human dwelling or as a placed for custody of property, but all these 3 ingredients are absent in this case. In view of the above discussion, I am of the opinion that conviction against the accused appellants for aforesaid offence under Section 436 IPC is not made out, but fact remains that as per evidence an occurrence of fire took place in which out of 4 Jhupas mentioned in site plan Ex.P/2 in the north eastern side upon agricultural land which was in possession, one Jhupa was burnt and that Jhupa was not used for worship, therefore, after appreciation of evidence, the conviction and punishment for offenceus 436 IPC is not sustainable in law. Similarly, when the complainant and accused parties are co-sharer in the agricultural field in question then offence under Section 447 IPC is also not made out because both complainant party and accused party were cultivating the land as co- sharer in which they were in possession and there is no allegation that appellants accused intervened in the Dhani, therefore, even, if prosecution story is accepted, offence does not trave beyond Section 435 IPC."

14. It is further observed that for an offence under Section 436 IPC,

the prosecution must establish that the accused had set fire to a "dwelling

house" or a place of human habitation. In the present case, the evidence

of P.W.4, who turned hostile, makes it clear that she had not seen who

set fire to the house. Likewise, P.W.6, the Fire Station Officer,

categorically stated that the informant did not specifically tell him that

her house had been gutted, nor did she name any person responsible.

These omissions create a reasonable doubt as to whether the dwelling

house of the informant was in fact destroyed by fire at the hands of the

accused. At best, the evidence indicates mischief by fire causing damage

to property, which squarely falls within the ambit of Section 435 IPC,

but not the graver charge under Section 436 IPC.