MOHINI KAPUR, J. - (1.) THE appellant Ram Niwas was tried by the Additional Sessions Judge No. 7, Jaipur City, Jaipur for the offence under Section 436 IPC. After trial, the learned Additional Sessions Judge arrived at the conclusion that the hut which had been burnt was not used for human dwelling or for purposes of worship or for keeping property and was a water hut used as a plau and as such the appellant was acquitted of the offence under Section 435 IPC. It was also held that the Plau was not worth more than Rs. 100/ -. He was sentenced to one years' simple imprisonment and a fine of Rs. 50/ - and to undergo one months simple imprisonment in default of payment of fine. Against this conviction and sentence passed on 27.10.83, the appellant has preferred this appeal.
(2.) THE FIR in this case was lodged by PW/4 Mahesh. In Ex. P/3, which is a written report, he wrots that he had three 'Thadies' which he let out to Prabhu Narain, Ashok and Praveen Kumar, Ram Niwas accused, lives behind these 'Thadies' and on the day of holi there was a quarrel between them in connection to the water tap. At that time the accused Ram Niwas gave a threat that he will burn the Thadies and Jhopdi'. Then on the date of incident i.e. 15.3.82 at about 8.30 p.m. when Ashok, Dhafal and Mahesh were having their dinner in the Thadi, they saw flames and they went outside and they saw Ram Niwas, who at once ran away after seeing them Fire Brigade was called and according to Mahesh all his Thadies were reduced to ashes.
(3.) THE prosecution examined as many as 8 witnesses. Out of these witnesses, PW/1 Dhafal became hostile while Pw/2 Prabhunarain and PW/3 Bhanwar Singh were not believed so far the case of the prosecution is concerned. The learned Additional Sessions Judge relied upon the statements of PW/4 Mahesh and PW/5 Ashok and found the accused guilty as stated above. One more witness PW/7 Praveen Kumar turned hostile and the remaining witnesses are police witness. Learned Counsel for the appellant has contended that the witnesses of the prosecution who have been believed by the learned Additional Sessions Judge are interested witnesses and actually no one saw the appellant lighting the hut and as such there is no evidence to hold that the appellant had committed the offence of putting fire. It has also been contended that there is no evidence on record to show that the value of the property burnt out was more than Rs. 100/ -. In support of his contention the learned Counsel for the appellant has placed reliance on Ghanshyam v. The State of Rajasthanzd (1) According to him the learned Additional Sessions Judge has himself held that the Thadis was not burnt but a Chhapper' used as Piau had been burnt and this conclusion cannot be challenged now. By referring to the 4 defence witnesses examined in the case, it is contended that the fire was caused by a 'Chimney' which was being used by Mahesh when they were sitting in the 'Chapper' and taking liquor. In the alternative, it is contended that the occurrence took place about 9 years ago and the appellant should by give the benefit of probation.;