JUDGMENT
Vishnudeo Narayan, J.
1. This appeal at the instance of the appellants stand directed against the impugned judgment and order dated 25.8.1998 and 26.8.1998 respectively passed in Sessions Case No. 77 of 1997/21 of 1997 by Shri Mungeshwar Sahoo, 2nd Additional Session Judge, Godda whereby and whereunder the appellants were found guilty for the offence punishable under Section 436/34 of the Indian Penal Code and they were convicted and sentenced to undergo RI for five years each.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of informant PW 8 Punilal Pandit recorded by ASI, S.R Sharma of Godda Mufassil PS at the house of the informant in village Kur-michak on 25.12.1996 at 14.00 hours regarding the occurrence which is said to have taken place on that very day at 10.00 hours and the case was instituted by drawing of a formal FIR (Ext. 2/A) on 26.12.1996 at 8.30 hours. The said fardbeyan and formal FIR were received on that very day in the Court empowered to take cognizance.
3. The prosecution case, in brief, is that appellant Chaturbhuj Pandit is his agnate and there is dispute between him and the said appellant for the last two years regarding the partition of the house. It is alleged that all the appellants came to the house of the informant with spade and gaita and they started demolishing the wall of the house of the informant and on protest they have stated that their land has been encroached upon by the informant by making the wall. It is also alleged that after sometime four unknown persons of his group came there armed with masket and they assisted them in the demolition of the said wall and on further protest by the informant appellant Sanjay Pandit son of Chaturbhuj Pandit had set fire in the thatched straw roof of his house as a result of which the house hold effects including 15 mounds of paddy have been destroyed causing a loss of Rs. 5000/- It is also alleged that on alarms PW 1, Bhola Maraiya, PW 10. Rabindra Nath Pandit, PW 2, Vivekanand Pandit besides Shyam Sunder Pandit (not examined) came to the place of occurrence and seeing them all the appellants fled away from there and they were chased by them and all the appellants were apprehended and in course of their apprehension they also sustained some injuries on their person and the appellants were handed over to the police by them at the place of occurrence.
4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this got up case due to enmity existing and alive between the parties.
5. The prosecution has in all examined 11 witnesses to support its case. PW 8 Punilal Pandit is the informant of this case. PW 1, Bhola Maraiya, PW 2. Vivekanand Pandit and PW 10 Rabindra Nath Pandit have been named as an ocular witness of the occurrence in question. PW 4, Vinod Pandit, PW 5 Huru Pandit, PW 6, Nirmal Kumar Pandit PW 7, Amar Pandit and PW 9 Sugabatl Devi, though not named in the Jardbeyan as ocular witnesses of the occurrence have taken oath in this case and out of them PWs 7 and 9 are the son and wife respectively of the informant and PW 9 is a hearsay witness regarding the occurrence in question. PW 3, Lal Bihari Pandit is also a hearsay witness of occurrence, PW 11 Siyaram Sharma is the IO of this case and he has proved the seizure list Ext. 3. Ext. 1 and 1/a are the signatures of PW 2, Vivekanand Pandit and one Shyam Sunder Pandit respectively on the said seizure list. No oral and documentary evidence has been brought on the record on behalf of the accused.
6. Relying upon the testimony of PW 8, the informant read with the evidence of PWs 1.2.10 as well as of PWs 4.5.6 and 7 coupled with the objective finding of the PW 11 the IO the learned Court below came to the finding of the guilt of the appellants and convicted and sentenced the appellants as stated above.
7. Assailing the impugned judgment tt has been submitted by the learned counsel for the appellants that the informant as well as the appellants are agnates having their common house in village Kurmichak, PS Godda Mufassil in the District of Godda in which they reside and there is a dispute between them regarding the partition of the said house much prior to the occurrence in question and several cases had earlier taken place between them and wife of appellant Chaturbhuj Pandit has filed a case against PWS 1,3 and much prior to the occurrence and all the witnesses are inimical to the appellants and they are the camp men of the informant and they have animus to depose falsely in this case and they cannot be termed as truthful witnesses regarding the alleged occurrence and their testimony has to be viewed with care and caution. It has further been submitted that as per the prosecution case the appellants had demolished the wall of the said joint house of the parties but PW 11, the IO in his objective finding does not support the demolition of the wall of the joint house of the parties and in this view of the matter very genesis of the prosecution case is false and unacceptable. It has also been submitted that there is specific allegation against appellant Sanjay Pandit of having set fire to the thatched roof in the said joint house but there is no iota of legal evidence as to how and in what manner appellant Sanjay Pandit has set fire to the said house. Elucidating further It has been submitted that there are material contradictions and inconsistencies in the evidence of the prosecution witnesses regarding the manner of setting fire as alleged which totally demolishes the prosecution case. Lastly it has been contented that the learned Court below did not at all meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants and as such the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the case of Suwari Sanyasi Apparao and Anr. v. Bod-depalli Lakshminarayana and Anr., AIR 1962 SC 586, Budhu Oraon and Ors. v. State of Bihar, 1977 BBCJ 425, Pappu v. Damodaran and Ors., 1968 Cr LJ 625 and Ramchandra Govind Take and Ors. v. The State. 1969 Cr LJ 112.
8. Refuting the contention aforesaid It has been submitted by the learned APP that it evident from the evidence on the record that the house, the wall of which was demolished, is a joint house of the parties to this case and the appellants have set fire to its thatched roof and the evidence on the record of PW 8, the informant supported by other ocular witnesses of the occurrence establishes the prosecution case beyond all reasonable doubts and the appellants were also apprehended by the villagers in course of the occurrence and handed over to the police and the learned Court below has rightly relied upon their evidence for coming to the finding of the guilt of the appellants and there is no Illegality in the impugned judgment. Relying upon the ratio of the case of Baboo Lal v. State through Mahesh Prasad, AIR 1953 Allahabad 409, it has been contented that the appellant had no right to demolish the wall of the house which was a common properties of the parties and by demolishing the said wall and setting fire to the thatched roof of the said house the appellant has committed the offence as alleged against them.
9. It is pertinent to mention at the very outset that both the parties are agnates and the house in question is the joint house of the parties to this case. Admittedly there is enmity existing and alive between the parties two years prior to the occurrence over the partition of the said joint house. PWs 1, 2 and 4 are also inimical to the appellants much prior to the occur-rence and Jilebi Devi wife of appellant Chaturbhuj Pandit had earlier filed a case against them. In the background of the existing enmity which is active and alive between the parties their evidence has to be scrutinized with care and caution. PW 8 Punilal Pandit, the informant has deposed that at the time of the occurrence he was in his house and all the appellants came there and they started demolishing the wall of the house with gaita and some unknown persons were also with them and on his protest they threatened to kill him and he kept mum and in course of the occurrence appellant Sanjay Pandit came on the roof and set fire to the thatched roof and as a result of the said mischief caused by fire his house hold effects including 15 mounds of paddy were destroyed causing loss of Rs. 10-15 thousand. He has further deposed that he raised alarms and the villagers assembled there and they apprehended all the appellants. He has further deposed that the said house belongs to him and he was residing in the said house with his family members. In para 6 of his cross-examination he has deposed that the Percha of the land including the said house is joint between him and the appellants beside one Ras Bihari though there has been partition of the lands but the said house is still joint. In para 11 of his cross-examination he has deposed that the appellants have demolished two rooms of the said house and also dismantled the roof over the verandah of the said house and the fire was set in on the remaining part of the said house and after the said incident he is still residing in that very house and a proceeding under Section 107 of the Cr. PC is also sub-judice between the parties in connection with the said occurrence. PW 7, Amar Pandit, the son of the informant has deposed that all the appellants along with four unknown persons came to the house of the informant and started demolishing the roof of the said house and on protest they pointed a pistol at them and appellant Sanjay Pandit set fire in the said house as a result of which house hold effects, were burnt causing a loss of Rs. 25-30 thousand and when the co-villagers assembled at the place they fled away and Sanjay Pandit was apprehended. He has further deposed that the roof of the said house was of straw. In para 4 of his cross-examination he has deposed that no protest was made when the appellants were demolishing the wall and at that time 100-150 persons had assembled there and they also did not protest. PW 9, the wife of the informant has deposed that when she returned from the jungle at about 12.00 o’clock on the day of the occurrence she had found the walls of her house demolished and she was told by the informant that appellant Sanjay Pandit had set fire in the house as a result of which house hold effects were burnt. She has also deposed that her daughter-in-law Dhanwatia and daughter Maya were in the house when the occurrence had taken place though they do not figure as witness for the prosecution in this case, PW 4, Binod Pandit and PW 6, Nirmal Kumar Pandit are the common relatives of the parties to this case, PW 4 has deposed that when he was returning from his field he saw a large number of person collected at the house of the informant and from there he went on the roof of his own house and saw all the appellants demolishing the wall of the house of the informant and they demolished the portion of the roof of the said house and set fire in the remaining portion of the said roof and appellant Sanjay Pandit had set fire in the said thatched roof. He has also deposed that Sanjay Pandit fled away, thereafter, and he was apprehended by the villagers assembled there. In para 6 of his cross-examination he has deposed that his house is situate at a distance of 15 feet south of the house of the informant. In para 7 of his cross- examination he has deposed that when he had reached the house of the informant the appellants were demolishing the said house. Similar is the evidence of PW 6 regarding the demolition and setting fire of the house of the informant by the appellants and setting fire in the said house by appellant Sanjay Pandit. In para 10 of his cross-examination PW 6 has deposed that at the time of the occurrence appellant ChaturbhuJ Pandit was stating that the informant has erected the wall forcibly upon his land and he further deposed that the height of the said wall is 5-6 feet and the appellants had demolished the said wall to the extent of 3-4 feet in height. In para 9 he has deposed that the wall is made of bricks and its roof is of straw. PW 5 has deposed that his house is adjacent the house of the informant and at the time of the occurrence he was on his roof and he saw the appellants along with some unknown persons demolishing the wall of the house of the informant and on being protested by the informant he was intimidated at the point of pistol to be done to death. He has also deposed that he has seen appellant Sanjay Pandit setting fire in the said house. PW I claims to have come to the place of occurrence on alarms and saw all the appellants demolishing the wall of the house of the informant and there were two or three unknown persons with them and they were armed with pistol and masket and they were also aiding the appellants in the demolition of the wall. He has also deposed that the appellants started digging the foundation of the said wall. His evidence is further to the effect that the persons assembled at the place raised alarms and the appellants fled away and appellant Sanjay Pandit set fire to the said house and also fled away with them. In para 3 of his evidence he has deposed that he said house was in exclusive possession of the informant and the appellants had no interest in the said house. He has also deposed that the house hold effects of the informant kept in the said house were burnt. However, in para 15 of his cross-examination he has deposed that the appellants had spade and gaita with them and they had dug the foundation upto 15-20 feet under the wall the depth of which was 1-1/2 hand deep and the fire was set in the straw, the bamboo and the “rollas” which were kept below. PW 2 has deposed that all the appellants along with unknown persons were breaking the wall of the informant and, thereafter, the appellants entered into the house of the informant and they came on the thatched roof and threw the straw and, thereafter, appellant Sanjay Pandit set fire in the house of the informant as a result of which entire materials kept in the said.house were burnt.
In para 6 of his cross-examination he has deposed that the appellant Chaturbhuj Pandit was saying that the wall belongs to him. He has also deposed that the said wall was from north to south in the house of the informant made of mud. PW 10 has deposed that he went to the place of occurrence and found the house of the informant burning but the does not know who has set fire in the said house. Similar is the evidence of PW 3, PW 11, the IO of this case has inspected the place of occurrence and found roof of the house of the informant burnt and the said roof was made of straw and the wall was made of brick. In para 6 of his evidence he has deposed that he has seized the burnt bamboo piece, burnt paddy and ashes from the place of occurrence and Ext. 3, the seizure list corroborates his objective finding though the seized materials have not been brought on the record in course of trial before the Court below. He has further deposed that he has arrested the appellants on the day of the occurrence itself. In para 15 of his cross-examination he has deposed that when he reached at the place of occurrence he found that the villagers had already apprehended all the appellants though no pistol was recovered from Sanjay Pandit. He has also deposed that he did not find any match box, lighter etc. at the place of occurrence. In para 18 he has deposed that when he reached at the place of occurrence the fire was not extinguished but the roof of the said house was burnt. The IO has also deposed in para 21 of his evidence that there were two rooms and one verandah in the house of the informant which were found burnt. However, in paras 11 and 12 he has deposed that PW 4, Binod Pandit and PW 5 Hum Pandit has not stated before him that appellant Sanjay Pandit had set fire in the thatched roof. From the evidence aforesaid it appears that the house which was set on fire was the joint house of the parties but the said house was in exclusive occupation of the informant. The evidence on the record establishes the fact that the said house was set on fire and the IO found at the time of his inspection that fire in the said house was not extinguished by that time and he has seized the burnt bamboo, burnt paddy and ashes from there though the IO in his objective finding at the place of occurrence is conspicuously silent regarding the demolition of the wall of the said house. The omission on the part of the IO not stating specifically regarding the demolition of the wall cannot be viewed as a lacuna to discard the prosecution case. There is evidence on the record as per the testimony of the ocular witnesses aforesaid that all the appellants along with unknown persons had demolished the wall of the house of the informant and appellant Sanjay Pandit had set fire in the said house. Even the evidence of PWs 4 and 5 is discarded in view of the contradiction as per their evidence read with the testimony of the IO still there are legal and reliable evidence on the record that appellant Sanjay Pandit had set fire in the said house. The learned Court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellant. The ratio of the case of Suvvari Sanyasi Apparao and another (supra) and Budhu Uraon (supra) has no application in the facts and circumstances of the case at hand. The ratio of the aforesaid cases are in respect of the occurrence under Sections 379 and 380 of the Indian Penal Code. In the former case the printing press was removed by the accused in the absence of the complainant and in the other case unripe paddy crop was harvested by the accused from the land and both the parties had claimed possession over the said land and in that background it was observed that a bonafide claim of right can be a good defence to a prosecution of theft. In the case of Pappu (supra) the prosecution case was that the complainant was in possession of a Poramba in Cheraikara and the accused have properties to the south of the Paramba and the complainant had put up a fence on the southern boundary of his Paramba and the accused had demolished the said fence causing damage to the complainant. The accused were acquitted and in the appeal against acquittal it has been observed that “a claim of right as to ownership or possession of property may stem from a mistake of law or a mistake of fact or of both. A mistake as to title or possession, whether it arises from mistake of law or of fact negatives mens rea. A person who puts forward a claim of right founded on mistake or ignorance of civil law pertaining to the matter need not necessarily establish that the mistake or ignorance arose in spite of reasonable diligence. The only thing necessary is that the mistake must be one which leads the accused to claim that he has a right to act as he does. A mistake as to criminal law only will not give rise to a claim of right; an error as to civil law may do so. So far as the offence of mischief is concerned, a claim of right believed to exist, even though unreasonably is a valid defence.” Here in the case at hand the house was admittedly a joint property of the parties and the demolition of the wall and setting fire of the house which was in exclusive occupation of the informant by the appellants cannot be said that as a mistake of law or a mistake of fact the wall of the said house was demolished and the house was set on fire by the appellants rather the appellants had taken law in their own hand and, therefore, the ratio of the case is of no help to the appellants in the facts and circumstances of this case. The ratio of the case of Ramchandra Govind Take and others (supra) is also of no help to the appellant for the reasons stated above. In the case of Baboo Lal (supra) it has been observed which runs as follows : ‘The dispute between the accused and the complainant about the ownership of the Pardha wall would not entitle the accused to demolish the wall, when it is found that the wall was the common property of both.”
The ratio of this case squarely covers the case at hand. The appellant had no semblance of right to demolish the wall and set fire the roof of the joint house which was in occupation of the informant exclusively and used by him for dwelling purposes. The proper course for the appellants was to get the house partitioned for carving out his separate thakta in the said house. He had no right to demolish the wall and set fire to the said house and therefore, the appellants have committed the offence of mischief by demolishing the house of the said house and setting fire to it. Thus there is no illegality in the impugned Judgment requiring an interference therein.
10. There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is hereby dismissed. The bail bonds of the appellants are hereby cancelled and they are directed to surrender before the Court below to serve out the sentence. The learned Court below is also directed to take all coercive steps in accordance with law to apprehend the appellant for serving out the sentence.