Shravan vs State of M.P.

S.L. Kochar, J.

This Criminal appeal is directed against judgment dated 29.09.2004 rendered in Sessions Trial No. 75 of 2004 thereby convicting the appellant for the offence punishable u/s 436 of the Indian Penal Code and sentencing the appellant to undergo Rigorous Imprisonment for 2 years with fine of Rs. 2000/- in default of payment of fine to suffer 6 months additional SI.

The facts of the case lie in a narrow compass that in village Chhapri, the appellant was having his agricultural field near the house of complainant Durgabai (PW1.) On 21.3.2004, in the noon at about 1.00 p.m. Durgabai went to take water from the water tank, her daughter Kavita (PW2) was in the house. She raised cry calling her mother Durgabai (PW1) upon setting fire her house by the appellant. Cries of Kavita (PW2) also attracted her father Mehtab (PW2) and other villagers who all reached at the house of complainant and extinguished the fire. It is also alleged by the prosecution that when villagers were extinguishing fire, the appellant asked them as to why they are doing so. When Durgabai (PW1) asked as to why he had set fire the appellant replied that he will do so. Because of fire, wooden log (SAKDIA) and two cotton mattress were burnt. The complainant suffered loss approximate Rupees 4000-5000/- The incident was reported by Durgabai (PW1). Her report is Ex. P/1. The appellant pleaded innocence and submitted that he was falsely implicated. Therefore, learned trial Court after examining the prosecution witnesses and on hearing both the parties convicted the appellant as indicated above. Against this conviction, the appellant preferred the appeal.

Having heard learned counsel for the parties and after perusing the entire record this Court is of the considered view that the offence u/s 436 IPC would not be made out. Durgabai (PW1), Kavita (PW2), Mehtab (PW3) have unequivocally stated that agricultural field of the appellant is situated adjacent to Kachcha bath room of the complainant. Mehtab (PW3) owner of the house in paragraph 4 has deposed that between his residential house and bathroom, there is a lane of 8''-10''. He has also deposed that the appellant set fire stem of crop in his own field and normally agriculturists set fire the stums in the field after reaping the crop. The appellant had collected the stems after cutting crops at one place and set it on fire. At that time fast wind was blowing because of particles of fire fell on the roof of Kachcha bathroom because of which 4-5 wooden logs caught fire. The clothes and mattress of the complainant were hanging in the open area of the house. They were also burnt. Durgabai (PW1) an author of First Information Report Ex. P/1, has failed to explain material and important omission of damage to the clothes by fire and the fact, that when she and villagers were extinguishing the fire, the appellant was saying them not to do so. (See paragraph 6 and 7 of her deposition). This material fact is also not mentioned in her case diary statement Ex. D/1. All these three witnesses are related to each other. Durgabai is the wife of PW3 Mehtab and Kavita (PW2) is the daughter of Mehtab (PW3). Station House Officer Mr. Yadav (PW7) prepared spot map Ex. P/2 and memorandum Ex. P/3 contents of both the documents have not been stated by this witness in his statement. This is settled law that contents of memorandum or Panchnama itself are not admissible in evidence but the same are required to be proved in Court by the concerned witness. Merely exhibiting memorandum and Panchnama and proving the signature of it''s ascribe is not sufficient to rely the contents of Panchnama. None of the prosecution witnesses has stated that there was any damage to house. On the basis of their positive admission that the appellant was setting fire to the stems in his own field and because of particles of fire fallen on Kachcha bath room because of which some wooden logs and cotton mattress hanging within the campus of the house of the complainant, were also damaged by fire would not be sufficient to bring act of the appellant within the purview of offence punishable u/s 436 IPC Which reads as under.

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.

There is absolutely, no evidence on record that the appellant set fire to the stumps in his field with an intention to cause or knowing it to be likely, to cause destruction of the building which is ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. In view of the positive statement of the aforementioned witness that it is general practice in the village for setting fire to the stumps of crops after reaping the crops. Therefore, it would be very difficult to discern that the appellant was having knowledge that his act of setting fire to the stumps in his field will cause damage to the property of the complainant. At the most, the appellant could be held responsible for negligence while setting fire to the stumps because of which damange has been caused to the property of the complainant.

In the facts and circumstances of the case there appears no provision in Indian Penal Code to bring the act of the appellant in the category of the offence punishable with jail sentence or fine or with both.. The appellant may be sued for causing damage to the property of complainant because of his negligent act. He was not having culpable negligence. However, complainant may file suit for damage against the appellant for the loss caused.

In the result, the appeal is allowed. The conviction and sentence of the appellant are set aside. The appellant is on bail, his bail bond and surety bond stand cancelled.

Copy of this judgment be sent to the trial Court along with the record immediately for compliance.