The central legal point established in the judgment is the requirement to prove the essential elements of the offence under Section 435 of the Indian Penal Code beyond reasonable doubt, and the need for reliable and consistent evidence to establish guilt.

S.B. Shukre, J.

Issue notice to the respondent-State.

2. Shri S.J. Kadu, learned A.P.P. waives service of notice.

3. Heard. Admit. Heard finally by consent.

4. This revision has been preferred against the judgment and order dated 27/5/2016 delivered in Criminal Appeal No.56 of 2011 thereby dismissing the appeal and confirming the judgment and order passed in Summary Criminal Case No. 270 of 2009 by the Judicial Magistrate, First Class, Chandur Bazar, Amravati dated 21/10/2011.

5. By the judgment delivered on 21/10/2011, the learned Magistrate has convicted the revision-applicant of the offence punishable under Section 435 of the Indian Penal Code while acquitting him of the offences punishable under Sections 294 and 506 of the Indian Penal Code. The allegations made against the revision-applicant were to the effect that on 08/3/2009 at about 5.30 p.m., in the evening, when some persons were working in the field owned by Mohan Nerkar, the applicant, owner of the adjoining field, with a view to cause damage to the standing crops and fruiting trees of Mohan Nerkar, set on fire some dried material present on the dhura or the boundary between the two adjoining fields.

6. Upon consideration of the evidence brought on record by the prosecution, the learned Magistrate found that the offences punishable under Sections 294 and 506 of the Indian Penal Code with which the revision-applicant was charged were not proved while the third offence that was charged against the revision-applicant, which was punishable under Section 435 of the Indian Penal Code, was proved beyond reasonable doubt and accordingly by her judgment and order dated 21/10/2011, convicted the revision-applicant of the same and sentenced him to undergo rigorous imprisonment for the period of one year. Learned Magistrate also imposed compensation of Rs. 7,000/- with default sentence of one month imprisonment. In the appeal, that was preferred against this judgment and order by the applicant, the same was confirmed by the appellate Court by its judgment and order dated 27/5/2016. Being aggrieved by the same, the revision-applicant is before this Court in this revision application.

7. In order to constitute the offence punishable under Section 435 of the Indian Penal Code, it is essential that it must be proved that the act is committed by the accused with an intention to cause damage or with the knowledge that the act is most likely to cause damage to the property of another. In the instant case, there has been only one eye witness. This eye witness is P.W.3 Satyawan Raut. His evidence shows that not a single circumstance has appeared in it enabling this Court to attribute requisite intention or knowledge to the revision-applicant. Therefore, I find that this essential ingredient of the offence of mischief punishable under Section 435 of the Indian Penal Code having not been proved beyond reasonable doubt in this case, the Courts below ought not to have recorded a finding of conviction against the revision-applicant.

8. Then, there is also an issue about the evidence of material witness, P.W.3 Satywan Raut, being of discrepant nature. According to the complainant, the incident of igniting fire had taken place at about 5.30 p.m. of 08/3/2009. He also mentions that the incident was witnessed by P.W.3 Satyawan Raut. However, evidence of P.W.3 Satyawan Raut shows that he was present in the field only till 3.00 p.m. to 4.00 p.m. on 08/3/2009. A question then would arise as to how could he witness the alleged act of the applicant setting fire to the dried material. Of course, in the cross-examination taken on behalf of the applicant by the learned Counsel, a suggestion has been given to this witness regarding his presence in the field at the time when the dried material on dhura was set on fire. To this suggestion, P.W.3 has given an affirmative answer. So, one could say that what was not stated in the examination-in-chief by this witness and which silence had gone in favour of