A person who sets fire to the property of another person with the intention of causing damage is guilty of mischief by fire under section 435 IPC.

1. - This criminal appeal is against the judgment dated 29-3-1976 of Additional Sessions Judge, Jalore, whereby appellant Heera has been convicted under section 435 I.P.C and sentenced to rigorous imprisonment for one year and a fine of Rs. 500/-, in default of payment of which to further undergo R.I. for three months. The appellant was also convicted under section 447 I.P.C. and sentenced to two months R.I. and a fine of Rs. 200/- in default of payment of which to further undergo R.R for one month. The sentences were to run concurrently.

2. Briefly stated the facts are these. Appellant Heera is the son-in-law of Ladi widow of Ravji r/o Hariyali. Her daughter Kidi had been married to the appellant. A month before the incident, appellant came to Ladi and demanded the water pumping machine. Ladi refused to give the machine as it was the only source of her earnings. One month after i.e. on 22-7-1974 in the evening appellant came to the village and set fire to the hut of Ladi. This hut was used for storing fedder and some other articles. The incident was witnessed by Ladi P.W. 5 and Choga P.W. 4. P.W. 1 Anna, P.W. 2 Bhinya, P.W. 3 Harlal also reached the scene of incident. On 24-7-1974, P.W. 1 Anna made a written report of the incident in police station Sanchore. The police started the usual investigation and saw the site and after completing the investigation filed a charge sheet against the appellant under section 436 I.P.C. in the court of Judicial Magistrate 1st Class, Sanchore, who committed the case to the Sessions. The learned trial court believed the prosecution evidence and convicted the appellant under section 435 I.P.C. mainly because a finding was arrived that no hut was destroyed by fire but only some haystacks or wheat or gwar fodder were destroyed. The learned trial court therefore, acquitted the appellant for the offence under section 436 I.P.C. and convicted him in the manner stated above.

3. I have heard the learned counsel for the appellant and the learned Public Prosecutor. It was argued by the learned counsel for the appellant that prosecution witnesses have come out with a highly exaggerated case because they developed the case of burning of a hut which could not be substantiated. I have considered this argument carefully but on this count alone the prosecution evidence cannot be thrown out as it was proved beyond reasonable debt that some haystacks and fodder of Ladi was burnt. The police saw the site and found the marks of burning. Moreover, it is highly impossible that the mother in-law would try to falsely implicate her son-in-law. In this view, though there is some delay in lodging the first information report, it does not affect the merits of the case and the credibility of the prosecution witness. P.W. 5 Ladi stated that she refused to give the water pumping machine demanded by the appellant A month after this, in the evening she was sitting in her hut and saw the appellant setting fire to the stacks of her fodder. Of course, she has named this place as jhoonpa. The witness further stated that she raised a cry and Narsiya and others came there. The witness admitted in the cross examination that she saw appellant from a distance of about 20 steps P.W. 4 Chhoga deposed that he heard the noise "ckys js ckys js" His contention was diverted and he saw the appellant set ting lire to the stacks. I have carefully gone through the testimony of these two witnesses but find no cogent reason to disbelieve them. P.W.1 Anna stated that he saw the jhoonpa burning and three persons including Heera near the scene of incident. To the same effect are the statements of P W 2 Bhinya and P W. 3 Harlal. Harbal further deposed that Laid told him that Heera had set fire to the jhoonpa. The only argument advanced by the learned counsel for the appellants is that Mst. Ladi could not have seen Heera distance of twenty steps or paundas. I find no reason to accept this contention because from this distance in the evening the