Prashant Kumar Mishra, J.

The core issues required to be considered in this criminal appeal are:-

(1) Whether a Kachcha hut could be treated as a building used for human dwelling or as a place for custody of property within the meaning of Section 436 IPC.

(2) Whether the offence would be attracted even in a case where the victim is not the owner of the land but the construction is made on encroached Government land.

(3) Whether offence under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act, 1989') is made out when there is no evidence that such offence is committed on the ground that the victim belongs to a member of Scheduled Caste and Scheduled Tribe community.

2. The appellant has called in question his conviction and sentence under Section 436 IPC and Section 3 (2) (v) of the Act, 1989 and sentence of RI for 10 years with fine of Rs. 500/- and life imprisonment with fine of Rs.500/-, respectively.

3. Allegation against the appellant and acquitted co-accused Tijram is that at about 10 AM on 11.04.1999 they committed mischief by fire with intend to destroy the dwelling house (Kothar) of Kaushilya Bai (PW-1) and her husband Puraan Singh (PW-2), who belong to Gond Tribal Community.

4. Kaushilya Bai (PW-1) informed the police at about 12:30 hours on 11.04.1999 reduced to writing vide Rojnamchasanha No. 391 (Ex-P-1) informing that since morning her husband had gone to another village for marriage invitation and she was working in a stone quarry. At about 7 am she came back to her house for having food and returned to attend her work at the stone quarry. When she was busy in the work, Bhukhau Satnami (PW-9) informed that her hut has caught fire. She went and saw that her house/hut was burning. After preliminary investigation Dehati Nalsi (Ex-P-3) was recorded at 18:40 hours on 13.04.1999 to the effect that during the interrogation witnesses Manoj (PW-4), Krishna (not examined) and Bainsingh (PW-5) informed that the appellant and one of his relative has committed the mischief by fire and has caused damage to the house belonging to the complainant. The FIR (Ex-P-7) was registered on similar allegations. After collecting the Caste Status Certificate of victim Kaushilya Bai (PW-1) charge-sheet was filed under Section 436 IPC and under Section 3 (2) (V) of the Act, 1989.

5. Co-accused Tijram was initially arrested and sent for trial when he was identified in the TI Pared held on 08.08.1999, however, subsequently, he remained absconding, therefore, the trial was separated and continued against the present appellant only. On his arrest on 14.08.2013, Tijaram was sent for trial, however, by judgment dated 04.02.2015 he has been acquitted.

6. Assailing the conviction, Shri Afroz Khan, learned counsel for the appellant would submit that in the Rojnamchasanha the complainant states to derive information from Bhukhau Satnami (PW-9) whereas from other evidence it would appear that she was informed by other witnesses, therefore, the whole prosecution story is doubtful. He would further submit that the prosecution case is full of material contradictions and omissions. It is also argued that from the statement of Puraan Singh (PW-2) it would appear that the structure in question was constructed on encroached land, thus, it did not belong to the victim, therefore, offence under Section 436 IPC is not made out. He would also submit that the essential ingredients to attract punishment under Section 3 (2) (v) of the Act, 1989 is missing, therefore, the said conviction also deserves to be set aside.

7. Per contra, learned State counsel would support the impugned conviction and sentence on the plea that the victim being in possession of the house, the offence under Section 436 IPC is made out even if the structure is built on encroached land. He would also submit that minor contradictions and omissions need not be given weight and further that offence under Section 3 (2) (v) of th