For conviction under Section 436 IPC, prosecution must prove intent to destroy a dwelling; insufficient evidence leads to modification of conviction to Section 435 IPC for mischief by fire.

Judgment :

S.S. Mishra, J.

Both the Criminal Appeals are directed against the judgment dated 07.10.1994 passed by the learned Sessions Judge, Phulbani, in S.T. No. 43 of 1994, whereby the appellants Raju Bhukta and Bimba Bhukta were convicted under Sections 436 /34 and 452/34 of the IPC. They were sentenced to 5 years of rigorous imprisonment and fined Rs. 1,000/- each, with an additional 3 months of rigorous imprisonment for non-payment of fine. Appellant Jagnnath Bindhani was also convicted under Section 452 /34 IPC and sentenced to 2 years of rigorous imprisonment, along with a fine of Rs. 1,000/-, with an additional 3 months of rigorous imprisonment for non-payment of fine. Since the impugned judgment is common, both appeals were heard together and are disposed of by this common judgment.

2. Heard Mr. D.P. Dhal, learned Senior Advocate, for the appellants and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that on 02.08.1993 at about 7:00 P.M., the informant Jayanti Behera (P.W.3) was sitting on the verandah of her house situated in village Dangulu, P.S. Phulbani Sadar, along with her mother Mohini Behera (P.W.4) and brother Narayan Behera. At that time, the accused persons, namely Raju Bhukta, Bimba @ Bimbadhar Bhukta, Jagannath Bindhani and Pratap Bhukta, being members of the same group and sharing a common intention, approached the house.

4. It is alleged that Jagannath Bindhani first trespassed into the house and when Jayanti followed him inside and protested, he pushed her. Thereafter, Raju Bhukta also entered the house and assaulted Jayanti by giving fist blows and kicks. Out of fear, Jayanti, her mother, and brother fled towards a nearby hillock while the accused persons chased them for some distance before returning to the house. From their place of hiding, the informant and her mother allegedly saw Raju Bhukta and Bimba @ Bimbadhar Bhukta setting fire, as a result of which the entire dwelling house was gutted.

5. The same night, Jayanti reported the matter at the Phulbani Fire Station. The Fire Station Officer Sukanta Sethi (P.W.6) with his staff rushed to the spot and extinguished the fire. During investigation, the police seized burnt straw, split wood, ash, and other remnants from the place of occurrence, as well as the blouse produced by Jayanti. Dr. P.W.5 examined Jayanti on the following day and found two bruises and one abrasion on her body, which were consistent with assault by fists and kicks.

6. On completion of investigation, charge-sheet was filed against the accused persons for offences punishable under Sections 452 /34 and 436/34 IPC, and additionally against Raju Bhukta under Section 354 IPC. At trial, the prosecution examined seven witnesses, including P.W.3 Jayanti, P.W.4 Mohini, P.W.5 the doctor, P.W.6 the Fire Station Officer, and P.W.7 the Investigating Officer. The defence denied the allegations and examined D.W.1, who claimed that the burnt structure was not the house of the informant but a hut used for illicit liquor business.

7. The learned trial Court, by judgment dated 07.10.1994, acquitted Pratap Bhukta of all charges and acquitted Raju Bhukta of the charge under Section 354 IPC. However, Raju Bhukta and Bimba @ Bimbadhar Bhukta were convicted under Sections 436 /34 and 452/34 IPC, while Jagannath Bindhani was convicted under Section 452 /34 IPC. The relevant portion of the aforesaid judgment is extracted herein below:-

“17. The evidence of p.w.3 has abundantly proved the factum that th