JUDGMENT : V. Gopalaswamy. J. 1. The State of Orissa has preferred this appeal against tile judgment of the Assistant Sessions' Judge, Phulbani camp Balliguda, acquitting the accused-Respondent of the charge u/s 436, IPC. 2. The gist of the prosecution case is that on 14-3-1983 at about 7 P.M. at viliage Kodapana (within Belghar P.S. in phulbani district), accused Kamdev Majhi, in a state of incoxication, set fire to the house of one Madhab Majhi and when the informant and the others of the village were engaged in putting out the fire of Madhab Majhi's house, the accused had set fire to the houses of the informant, Beda Majhi, Baldev Majhi and Tuakaladu Majhi also, as a result of which the said four houses were completely burnt and thereby the accused, rendered himself liable u/s 436, IPC. 3. The plea of the accused was one of denial. No witness was examined on behalf of the defence. 4. The trial Court found that the accused had set fire to the houses of Madhab and the informant as a result of which four house's of the villagers were gutted by fire, but all the same acquitted him of the charge u/s 436, I.P.C. by invoking the provisions of Section 85, IPC. The learned Standing Counsel contended that the trial Court acted illegally in acquitting the accused as the facts and circumstances of the case do not justify the giving of the benefit of the provisions of Section 85, I.P.C. to the accused. The learned Counsel for the Respondent contended that there is no reliable evidence to show that the accused had set fire to any of the houses in the village and on that score alone accused was entitled to an acquittal. So before considering the point whether the trial Court was justified in invoking the provisions of Section 85, I.P.C. in the facts of the present case, the evidence on record merits careful scrutiny to find out if the accused had set fire to the houses of Madhab and the informant, as alleged by the prosecution. 5. The prosecution has examined in all seven witnesses to prove its case. P.W. 1 Sekaradu, the wife of Telurgu, claims to have seen the accused's setting fire to the house of Madhab. 5. The prosecution has examined in all seven witnesses to prove its case. P.W. 1 Sekaradu, the wife of Telurgu, claims to have seen the accused's setting fire to the house of Madhab. P.W. 2 Dibana is the informant in the case P.W. 5 pagari states about the accused setting fire to the house of her brother P.W. 2. P.W. 3 is the Special Officer, Kutia Kandh Development Agency (K.K.D.A.) who claims to have rushed to the spot of occurrence and helped others in extinguishing the fire P.W. 4 was a witness to certain seizures made by the police during the course of investigation. P.Ws. 6 and 7 are the Investigating Officers in the case. 6. The evidence of P.W. 1 shows that on the relevant evening as she was sitting in front of her house, the accused came there shouting that somebody had concealed his wife and he would set fire to the dwelling houses and thereafter he gave kicks to his own house and got a match-box and lighted a match-stick and set fire to the roof of Madhab Majhi from the front side, when she raised an alarm about it and on hearing her alarm, P.W. 2, Madhab and others arrived there and put out the fire by pulling out the affected portion of the straw from the roof. The above evidence of P.W. 1 shows that before setting fire to the house of Madhab the accused had created a scene by shouting about somebody concealing his wife and by declaring that he would set fire to the dwelling houses and so it must have drawn the attention of others as well besides P.W. 1 and therefore, it is normally expected that if the above evidence of P.W. 1 were to be true, somebody else besides P.W. 1 would also have witnessed the setting of fire to the house of Madhab by the accused. But peculiarly enough no other villager comes forward to corroborate the version of P.W. 1 that the accused had set fire to the house of Madhab. It is in the evidence of P.W. 1 that the accused brought the match-box from his house, but she omitted to state about it before the I.O. and the same is a material omission. If there is any truth in the version of P.W. 1, then Madhab is the aggrieved person. It is in the evidence of P.W. 1 that the accused brought the match-box from his house, but she omitted to state about it before the I.O. and the same is a material omission. If there is any truth in the version of P.W. 1, then Madhab is the aggrieved person. But then, Madhab is not examined to corroborate the version of P.W. 1 that on her raising an alarm he and others arrived at the spot and put out the fire and that is a circumstance which seriously impeaches the credibility of P.W. 1. 7. P.W. 5 is a girl aged about 16 years by the date of her deposition in November, (sic). She is the sister of the informant P.W. 2. She is the only witness who claims to have seen the accused setting fire to the top of the doors of the house of P.W. 2 by means of a match-stick. It is in her evidence that as she raised an alarm on seeing her brother's house catching fire, P.W. 2 and others arrived at the spot and due to the fire the houses of P.W. 2, Beda, Baladev and Taukaladu were gutted P.W. 5 admitted in cross-examination that by the time of occurrence she was sleeping in the Bari side of her house and at the time of occurrence it was already night time and it was a dark night. In view of her above admission it is difficult to believe that she was able to see the accused setting fire to the house of her brother at the relevant time. The evidence of P.W. 5 shows that the dwelling house of her father was 3 to 4 houses away from the house of P.W. 2. She claims that she was residing in the house of her brother P.W. 2 on the relevant night She made prevaricating statements when she stated in the first instance that she had no brother and subsequently corrected herself by stating that she lives with her brother Dibana. In her deposition P.W. 5 described herself as the daughter of Kadara Majhi and so it may be presumed that she was unmarried by the relevant date. In her deposition P.W. 5 described herself as the daughter of Kadara Majhi and so it may be presumed that she was unmarried by the relevant date. In any event, as the house of her father was close by, the probabilities are in favour of the defense suggestion that on the relevant date P.W. 5 was residing with her father and not in the house of her brother P.W. 2. The nature of the evidence of P.W. 5 is such that it does not inspire the confidence of the Court. 8. According to the prosecution as P.W. 2 and others were engaged in putting out the fire at the house of Madhab, accused had set fire to the house 'of P.W. 2 and it resulted in four houses being completely destroyed by fire. From the evidence of P. Ws 1 and 2 it is seen that the fire at the house of Madhab was put out as the affected portion of the straw was pulled out and so not much of time was taken in putting out that fire. If there is any truth in the version of P.W. 1 that she raised an alarm on seeing the accused setting fire to the house of Madhab, then as soon as the villagers learnt from P.W. 1 about the accused setting fire to the house of Madhab, some of them would have immediately tried to catch hold of the accused and in that case there would have been no sufficient time or opportunity for the accused to set fire to the house of P.W. 2 also P.W. 1 stated in her chief-examination: That night the houses of Dibana, Tuakaladu and Beda were also gutted by fire. From the evidence of P.W. 1 it is seen that she does not support the version of P.W. 2 that the house of Baladev was also gutted by fire. She does not also state in her evidence as to how the houses of the said three other persons were also gutted by fire. So even P.W. 1 does not corroborate the version of P.W. 2 that it was because of the accused his house and the houses of three others were gutted by fire P.W. 4 is also a resident of the village of the informant. He was examined to prove the seizure list Ext. 2. So even P.W. 1 does not corroborate the version of P.W. 2 that it was because of the accused his house and the houses of three others were gutted by fire P.W. 4 is also a resident of the village of the informant. He was examined to prove the seizure list Ext. 2. Though P.W. 4 is a resident of the village of occurrence, he too does not state anything about the accused setting fire to any of the houses of his co-villagers on the relevant night. 9. According to the prosecution the houses of Beda, Baladev and Taukaladu were also gutted by fire and it was the accused 'who was responsible for it. So the said Beda, Baladev and Taukaladu are also material witnesses in the case. But none of them was examined on the side of the prosecution and there is no explanation of such non-examination and the same is, therefore, fatal to the prosecution case. According to the prosecution, in the first instance the house of Madhab was set fire to by the accused and it afforded an opportunity to the accused for setting fire to the house of P.W. 2 as well. So Madhab is a most material witness in the case. But strangely enough none of the Investigating Officers have even examined Madhab regarding the occurrence and such non-examination creates a serious doubt about the truth of the prosecution story that the accused had set fire to the houses of Madhab and P.W. 2 and more so as Madhab was not Examined as a witness in the case. 10. P.W. 3 Balaram Das is the Special Officer, K.K.D.A. at Belghar. His evidence shows that on seeing the flames from his village Belghar, he rushed to the spot of occurrence and it took about 20 minutes to go to the spot of occurrence from Belghar. He claims to have extinguished the fire by cutting the plantain trees and throwing them over the fire, as no water was available nearby. From the evidence of P.W. 3 it is seen that the police station is at a short distance from the place of occurrence and was only one Kilometre from his colony. He claims to have learnt on enquiry that it was the accused who set fire to the house of P.W. 2. From the evidence of P.W. 3 it is seen that the police station is at a short distance from the place of occurrence and was only one Kilometre from his colony. He claims to have learnt on enquiry that it was the accused who set fire to the house of P.W. 2. If there is any truth in the above evidence of P.W. 3, then P.W. 3 could have very easily reported about the occurrence to the Police on the very night. The alleged occurrence took place at about 7. P.M. on 14-3-1983 and the F.I.R. was lodged only on 15-3-1983 at 5.25 P.M. So the very fact that P.W. 3, though an officer, took no steps to see that the F.I.R. about the occurrence was promptly lodged before the Police, is itself a strong circumstance which discredits his testimony. If there is any truth in the version of P.W. 3 that he put out the fire by throwing out plantain trees on-the fire, the same would have been found at the spot by the I.O. So the evidence of the I.O. P.W. 6 that when he went to the spot during the course of the investigation he did not find any cut plaintain trees at the spot creates a serious doubt about the veracity of P.W. 3 when he claims to have extinguished the fire by throwing cut plaintain trees. If there is any truth in the version of P.W. 3, he is one of the most material witnesses in the case. The I.O. P.W. 6 was in charge of investigation of the case from 15-3-1983 till 21-3-1983. P. W. 6 admitted in cross-examination that he did not examine P.W. 3 Balaram Das and such non-examination of P.W. 3 by the I.O., P.W. 6 lends support to the defence suggestion that P.W. 6 did not go to the village of occurrence on the relevant night. 11. P. W. 6 admitted in cross-examination that he did not examine P.W. 3 Balaram Das and such non-examination of P.W. 3 by the I.O., P.W. 6 lends support to the defence suggestion that P.W. 6 did not go to the village of occurrence on the relevant night. 11. As earlier stated, the police station was only at a short distance from the village of occurrence and so there was considerable delay in the lodging of the F.I.R. when the alleged' occurrence which took place at 7 P.M. on 14-3-1983 was reported to the police only on 15-3-1983 at 5.25 P.M. There is no explanation from the side of the prosecution as to why there was such considerable delay in the lodging of the F.I.R. It is in the evidence of P.W. 2 that he got the F.I.R. Ext. 1 drafted by a professional scribe on payment of Rs. 45/-, P.W. 3 admitted that P.W. 2 showed the F.I.R. to him before filing it before the Police. The above circumstances reveal that the F.I.R. was drafted after much deliberation and the same is another suspicious feature of the prosecution case. When P.W. 2 alleged that two tin boxes, radio and other valuable articles belonging to him were burnt due to the fire, he could have very easily produced anyone of such burnt articles before the Court in proof of the damage caused by the fire. It is difficult to believe that articles such as tin boxes, radio etc., would have been burnt to ashes So the non production of any of the burnt articles before the Court is another circumstance which discredits the testimony of P.W. 2 that his house was gutted by fire on the relevant night. 12. The prosecution evidence suffers from serious infirmities, as pointed out earlier; and so it would be unsafe to rely on the same to hold the accused guilty u/s 436, I.P.C. In view of the finding that the prosecution failed to prove its case satisfactorily against the accused u/s 436, I.P.C., the question whether the accused is entitled to the benefit u/s 85, I.P.C. does not strictly arise for consideration. However, it is considered proper to deal with the point raised u/s 85, IPC briefly for the guidance of the subordinate Judiciary. 13. However, it is considered proper to deal with the point raised u/s 85, IPC briefly for the guidance of the subordinate Judiciary. 13. Section 85: I.P.C. provides thus: Nothing is an offence which is done by a person who, at the time of doing it is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Section 86, I.P.C. provides thus: In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if, he had not been intoxicated, unless the thing which intoxicated 'him was administered to him without his knowledge or against his will. Both Section 85 and Section 86 lay down the law relating to drunkenness as bearing on the wrongful acts committed by persons the difference between the two sections being with regard to consequences depending upon whether the drunkenness is involuntary or voluntary. As some guilty knowledge or intention forms/part of the definitions of many offences, Section 86 is provided to meet those cases. It says that a person voluntarily intoxicated wilt be deemed to have the same knowledge as he would have had if he had not been intoxicated. To bring home to the accused the charge u/s 436, IPC the ingredients to be proved are: (i) the accused committed mischief within the meaning of Section 425, I.P.C., (ii) that the mischief was caused by fire; (iii) by such mischief the accused intended or knew that he was likely to cause damage; and (iv) the damage caused thereby amounted to Rs. 100/- or more. A person commits mischief if he causes destruction of property knowing that he is likely to cause wrongful loss or damage to the public or any person even if an intention to cause that damage is not made out in Basdev Vs. The State of Pepsu the Supreme Court has held that so far as knowledge is concerned the Court must attribute to the intoxicated man the same knowledge as if he was quite sobre. The State of Pepsu the Supreme Court has held that so far as knowledge is concerned the Court must attribute to the intoxicated man the same knowledge as if he was quite sobre. But as far as the intent or intention is concerned, the Court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. It is not the finding of the trial Court that the drunkenness in the present ease is involuntary. The judgment of the trial Court reveals that it is a case of voluntary drunkenness and so Section 85, IPC has no application to the facts of the, present case. Even if the accused was in a state of intoxication at the relevant time, yet the guilty Knowledge can be attributed to him. So the trial Court was not justified in invoking the provisions of See 85, IPC in favour of the accused as voluntary drunkenness is no excuse for the commission of a crime. However, this does not materially affect the ultimate decision in the case, as the nature of the prosecution evidence is such that it does not warrant a conviction of the accused u/s 436, I.P.C. 14. In the result I arrive at the finding that the accused is not guilty of the offence u/s 436, I.P.C., though the finding is based on grounds different from those relied on by the trial Court. Hence I confirm the judgment of the trial Court acquitting the accused-Respondent of the charge u/s 436, IPC and accordingly dismissed the appeal. Appeal dismissed. Final Result : Dismissed