Bombay High Court
Ashok S/O Shrawan Urkude vs State Of ... on 7 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
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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 ::: 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 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 ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:47 ::: apeal232.02.J.odt 3 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 ::: 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:
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.
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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. 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. ::: 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.
11] The bail bond stands discharged.
12] The fine amount paid, if any, by the accused shall be
refunded to him.
JUDGE
NSN
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