The central legal point established in the judgment is the requirement for sufficient evidence to prove the elements of the offense under Section 436 of IPC, including ownership and the nature of the structure in question.

Harbans Lal, J.

1. This appeal is directed against the judgment/order of sentence dated 18.10.2002 passed by the learned Additional Sessions Judge, Panipat, whereby he convicted and sentenced Chander accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- and in default of payment of the same, to further undergo rigorous imprisonment for two months under Section 436 of I.P.C.

2. Succinctly put, the facts of the prosecution case are that on 13.1.1997, Prem Singh, the then SI/SHO Israna happened to be present at Bus Stand of Village Kalkha. Meanwhile, Balbir son of Hari Chand of Village Luhari moved an application before him containing the allegations that Chander, whom the Gram Panchayat had leased out Chhappar (thatched roof) along with shop, has set afire the Chhappar on 12.1.1997 at 23.40 P.M. by sprinkling kerosene oil in the presence of Om Parkash Lamberdar, and Ram Dhari Pandit and Prithvi Singh, residents of village Luhari. On the basis of this application, the case was registered. The aforesaid SHO seized the ash and some coal from the place of occurrence, prepared the rough site plan and got the scene of crime photographed. The accused was arrested. After completion of investigation, the charge-sheet was laid in the court of learned Illaqa Magistrate, who committed the case to the Court of Sessions for trial.

3. On commitment, the accused was charged under Section 436 of IPC to which he did not plead guilty and claimed trial.

4. To bring home guilt against the accused, the prosecution examined as many as 11 witnesses. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He examined Hans Raj DW-1 in his defence.

5. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.

6. I have heard the learned counsel for the parties besides perusing the record with due care and circumspection.

7. Mr. Parmar, Advocate appearing as amicus curiae on behalf of the appellant, stressing his every nerve urged with great eloquence that as per allegations of the prosecution, the Chappar which was leased out by the Gram Panchayat to the accused, was set ablaze by him by sprinkling kerosene oil but the record is quite barren to show if the alleged Chhappar was an enclosure and in the absence of such evidence, the case of the prosecution does not fall within the ambit of Section 436 of IPC. To buttess this stance, he has sought to place abundant reliance on the observations rendered in re : Raj Singh v. State of Haryana, 2003(2) Recent Criminal Reports (Criminal) 697 and Babulal and another v. State, A.I.R. (39) 1952 Allahabad 146. Section 436 of IPC reads in the following terms :

"436. Mischief by fire or explosive substance 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."

8. Hukam Chand, PW-5 has solemnly affirmed that "I have brought the original receipts which have been issued in favour of the accused. The photo copy of the same is Exh. PD. I have also brought the Register of Lease showing that the shop was given to the accused. Shop No. 2 was leased in favour of the accused. The photo copy of the Register of Lease is Exh. PE." On appraising this evidence, it transpires that two shops owned by the Gram