PALSHIKAR, J. - (1.) THE appellant in this case has been convicted under Section 436 of the Indian Penal Code to suffer imprisonment for two years.
(2.) THE prosecution story stated briefly is that on 9. 5. 1983 PW. 7 Shiv Narain had gone out of his village and his daughter was alone in the house when the accused came there and claimed drink water, drank it and left smoking bidi and it is alleged that he threw light match stick or bidi near the Dhani which resulted in burning the "bad and the "dhani" of Shiv Narain. On the basis of report alleged, the present accused was prosecuted and believing the testimony of the only child witness, conviction was recorded. With the assistance of the learned counsel for the accused and the learned Public Prosecutor, I have scrutinised the record and reappreciated the evidence. Even if the entire oral evidence as led by the prosecution is accepted, the order of conviction cannot be sustained. Excepting the entire evidence of the prosecution, what is established is that the accused came to the house of the complainant drunk water and returned smoking bidi which was thrown by him on the ground, which throwing resulted in burning hut and the compound of the hut belonging to the complainant, there is no evidence whatever to prove or even to infer that the accused had the intention of causing such wrongful loss to the complainant. Provisions of Section 436 of the Indian Penal Code reads as under:- " 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. " In order to bring home the conviction under this section, the prosecution has established that first mischief was committed by the accused; second that mischief was committed with intention of causing destruction of a dwelling house or place of worship or place of custody of property or; third had knowledge that it would be likely to cause such destruction. Mischief has been defined in Section 425 which reads as under:-- " 425. Mischief.-Whoever, with intent to cause, or knowling 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 or diminishes its value or utility or affects it injuriously, commits "mischief. " Explanation 1.-It is not essential to the offence of mischief that the offender should intend to cause loss or damage 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 damage 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. "
(3.) IT will be seen therefore, from the provisions of Section 425 that the act must be done with intend to cause wrongful loss or damage either to the Public or any person by destruction of any property. IT has been added by the explanation that even knowledge that such wrongful loss would be caused is sufficient, several illustrations have also been given below under Section 425. From the perusal of the knowledge of mischief as the illustration thereunder, it is crystal clear that in order to bring home the charge under Section 425, the prosecution must prove intention or knowledge on the part of the accused to cause wrongful loss or damage to property and when such mischief is caused in relation to dwelling house, the punishment is provided under Section 436. As aforesaid even if the entire evidence in the prosecution case is accepted, what has been proved hereby is that the accused came to the house of the complainant and demanded from the son of the complainant drinking water, drank it and left the house smoking a bidi and threw the bidi or the match stick in the compound. The complainant has also been examined and he has stated that the accused was displeased with him and therefore, he has put the house on fire. There is no evidence of any enmity between the parties even in the statement of Shiv Narain P. W. 3. In such circumstances, it is clear that the accused lighted the bidi and there the burning match stick in the compound of the complainant and that action accidentally resulted in burning the compound and dwelling house. This evidence again therefore, be held sufficient to attribute intention or knowledge to the petitioner of the degree contemplated by provisions of Section 425 and 436 of the Indian Penal Code, though, unfortunate, it is a case of accident and not of any criminal intend to commit the offence contemplated by Section 425 or 436. In my opinion, therefore, the appeal deserves to be allowed and the same is allowed. The accused is on bail, his bail bonds are cancelled. .;