A revisional court shall not interfere with concurrent findings of fact unless they are grossly perverse, and a court may grant probation to a first-time offender where the circumstances support a reformative approach while ensuring adequate compensation for the victim.

JUDGMENT :

RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent – State of Gujarat.

[1.0] By way of present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the applicant has prayed for quashing and setting aside of the judgment and order of conviction and sentence dated 27.08.1996 passed by the learned 2nd Extra Assistant Sessions Judge, Palanpur in Sessions Case No.97 of 1993 and also the judgment and order dated 08.03.2007 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Deesa in Criminal Appeal No.18 of 1996.

[2.0] Heard learned advocate Mr. N.P. Chaudhary for learned advocate Mr. Tushar Chaudhary for the applicant and learned APP for respondent – State of Gujarat.

[3.0] The brief facts leading to filing of the present application are as follows:

[3.1] One Karmanbhai Sendhabhai Rabari of village Bharvada, Taluka Vav, District Banaskantha filed an FIR being I-CR No.18/1992 with Suigam Police Station for the offence under Section 436 of the Indian Penal Code, 1860 (For short “IPC” on 07.05.1992 against the present applicant alleging that the applicant – accused caused damage to the Hut of the complainant situated in Survey No.695 of village Bharvada by setting it on fire and thereby the applicant committed the offence punishable under Section 436 of the IPC. After completion of investigation, charge-sheet came be filed on 17.06.1992 and as the offence under Section 436 of the IPC was exclusively triable by the Court of Sessions, it was committed to Sessions Court, Palanpur on 14.08.1992 which was registered as Sessions Case No.97 of 1993. Thereafter, the Charge at Exh.2 was framed by the learned trial Judge. After full-fledged trial, the learned 2nd Extra Assistant Sessions Judge, Palanpur vide the judgment and order dated 27.08.1996 passed in Sessions Case No.97 of 1993, convicted the present applicant – accused for the offence under Section 436 of the IPC and sentenced the applicant to undergo rigorous imprisonment for five years with fine of Rs.5000/- and in default of payment of fine, to undergo further simple imprisonment for one year. The said judgment and order came to be challenged by the applicant by way of filing Criminal Appeal No.18/1996 which came to be dismissed by the judgment and order dated 08.03.2007 and conviction and sentence imposed upon the applicant was upheld and confirmed. Hence, present revision application is filed.

[3.2] Learned advocate Mr. Chaudhary appearing for the applicant has submitted that both the Courts below have committed an error in passing the judgment and order of conviction and sentence and same is unjust, improper and perverse and passed without appreciating the evidence though offence under Section 436 of the IPC is not made out. He has further submitted that as per Section 436 of IPC, there should be destruction of any building which is used as a human dwelling by mischief by fire or explosive substance with intent to destroy it and thus, destruction of building is must to attract section 436 of the IPC and has submitted that in case property other than the building is destroyed by fire, then section 435 of the IPC would apply and not Section 436 of the IPC. Even, as per the prosecution case, damage was caused to Chhapara (Kuba) situated in the agricultural field and the chhapara (kuba) cannot be termed as a 'building' and therefore, conviction and sentence under Section 436 IPC is bad in law. He has further submitted that damage is caused to hut situated in the field which cannot be termed as building. Further, he has submitted that no reliable evidence is produced on record and learned trial Court has committed an error in considering the so-called eye witness who is not having any personal knowledge and only relying on the evidence of child witness namely Pira Hemraj who is declared hostile though the learned trial Court has accepted the version of said wi