JUDGMENT : S.B. Shukre, J. 1. This is an appeal preferred against the judgment and order dated 31st March, 2010, passed in Sessions Trial No. 13/2010. by Ad-hoc Additional Sessions Judge-4. Nagpur thereby convicting the appellant-accused for an offence punishable under Section 436 of the Indian Penal Code. The prosecution case in brief is as under: "The complainant-Shankar Ganpatrao Thakre-agriculturist had purchased a land at Mauza Kavvatha in the year 1982. He had constructed a temporary shed made up of grass sticks, wooden poles and rafters with roof of country tiles. He had stored PVC pipes, some agricultural equipments and fodder worth Rs. 37,000/-; in that shed. The accused also owned the land adjoining to the said agricultural field of the complainant. At about 7.30 a.m. of 27.5.2009, when the complainant went to his field, he saw the temporary shed on his field as in flames. One Gunwant Thakre, also owning the adjoining land, was present on his land. Complainant asked him as to how did his temporary shed catch fire. He informed him that the accused was burning wooden sticks and dried organic material in his land and the embers from the fire were carried away by the wind to the temporary shed of the complainant which resulted in the shed catching fire. The accused was also present in his land and therefore complainant approached him to seek explanation from him. The accused admitted his mistake and told him that he would pay compensation to the complainant. However, it appears compensation was not paid to the complainant and, therefore, two days later on, complainant filed a police report with the Police Station Koradi on 25.5.2009." 2. After investigation, a charge sheet for an offence punishable under Section 436 of the Indian Penal Code was filed against the applicant-accused. On merits of the case, the trial Court found that the applicant-accused committed an offence of mischief by burning temporary shed of the complainant punishable under Section 436 of the Indian Penal Code and, accordingly, convicted and sentenced the appellant to suffer rigorous imprisonment for a period of 3 years together with fine of Rs. 300/- with default sentence of ten days by its judgment and order passed on 31st March, 2010, which are under challenge in the present appeal. 3. 300/- with default sentence of ten days by its judgment and order passed on 31st March, 2010, which are under challenge in the present appeal. 3. On perusal of the evidence available on record, I find great substance in the argument of learned counsel for the appellant that this is a case of no evidence against the appellant-accused and find no merit in the argument of the learned A.P.P. for the State, who submits that the burden was upon the appellant to prove that the act of burning of waste matter committed by him in his land was done with great care and caution so that its flames or embers did not reach the adjoining houses on structures. 4. Out of three prosecution witnesses, evidence of two prosecution witnesses, namely, PW 2 Shankar Ganpatrao Thakre, the complainant and PW 3 Gunwant Hiraman Thakre, the neighbouring land owner, is material and, therefore, deserves consideration. 5. Evidence of both these witnesses discloses that PW 2 Shankar-complainant had not personally witnessed as to how his temporary shed caught fire. He admits that he was told by the neighbouring land owner. PW 3 Gunwant, that the temporary shed caught fire because of carrying of some embers by the wind which originated from the fire that was lit by the appellant on his field in a bid to destroy the dried grass and other organic matter. Of course, PW 2 Shankar in his examination in chief, has stated that the appellant-accused himself told him that he had set his temporary shed on fire and had also agreed to pay compensation of Rs. 25,000/- to him, but this statement seems to be improvement on his part. In the F.I.R. vide Exhibit-9 this fact has not been stated by PW 1 Shankar. In the F.I.R., PW 1-Shankar has stated that he was told by Gunwant that the probable reason for fire was of burning of waste matter and organic material by the appellant in his field. In the F.I.R., PW 1-Shankar has only stated that this accused admitted his mistake in the matter and nothing more. So, the said improvement effectively contradicts what he has stated before the Police in the F.I;R. and it only goes to create doubt about the credit worthiness of the complainant. 6. In the F.I.R., PW 1-Shankar has only stated that this accused admitted his mistake in the matter and nothing more. So, the said improvement effectively contradicts what he has stated before the Police in the F.I;R. and it only goes to create doubt about the credit worthiness of the complainant. 6. Apart from the above-referred doubt there is also an unexplained delay in filing the F.I.R. The complainant has also not lodged F.I.R. immediately after the incident and it appears that he waited for the complainant to fulfill his promise of payment of compensation for two days and that is why the complainant, PW1, has given no explanation for the delay in the F.I.R. This can be confirmed from the admission given by the complainant in his evidence before the Court. He admits that the accused had shown his readiness to give amount of Rs. 25,000/- to him and that the accused had also sent Rs. 10,000/- to him and it was only thereafter that he lodged the complaint. This only shows that although, the complainant was not sure that his temporary shed had been burnt mischievously by the appellant-accused, the complainant, with a view to teach a lesson to the appellant-accused for not fulfilling his promise of payment of compensation of Rs. 25,000/-, lodged a report containing exaggerated statements against the present/appellant. Such belated lodging of F.I.R., without any probable justification for the delay having been given, therefore, has to be considered in this case as fatal to the prosecution, and on this ground alone testimony of PW 1 Shankar, the complainant deserves to be thrown out, and if that is done, the whole prosecution case crumbles to the ground. 7. But, before throwing out prosecution case on the afore-stated grounds, let us examine what PW 3 Gunwant states before the Court just to assure us that there is no reliable evidence in this case to find guilt of appellant for an offence of mischief. PW 3 Gunwant has stated that temporary shed of the complainant was burnt due to wind and the complainant also admits that he was so told by PW 3. PW 3 Gunwant has stated that temporary shed of the complainant was burnt due to wind and the complainant also admits that he was so told by PW 3. When PW 3 Gunwant says that temporary shed of the complainant got burnt due to the wind, it has to be understood in the context of his whole evidence and then it would become clear to us that temporary shed of the complainant caught fire due to embers emerging from the fire that was raging upon the land of the appellant and which were carried by wind to the temporary shed of the appellant. This is what the learned Ad-hoc Additional Sessions Judge has also found in this case. To this extent the learned Judge is right but not any further. He has also found that the wind would not have played any role in this case had the appellant been careful while setting on fire the waste material on his land and here I disagree with of the learned Ad-hoc Additional Sessions Judge. The reason being that the reason that the offence of mischief punishable under Section 436 of the Indian Penal Code requires element of mens rea which comprises either intention to destroy the building or a dwelling place or a place used for custody of the property or knowledge that the act complained of will cause the destruction of the building or place as is referred to earlier. 8. In the instant case, as the evidence suggests, there was no culpable intention on the part of the appellant and even no knowledge can be attributed to the appellant as the blowing of the wind, velocity of the wind and direction of the wind are the factors which are quite unpredictable at least for a lay man. It is possible that when the fire is lit there is no wind and the wind may start blowing after the fire is ignited. It is also possible that at the time of making fire some wind is blowing already and some time after it may increase its velocity or may change it's direction. Therefore, if the prosecution had sought to rely upon the wind factor, it was necessary on the part of the prosecution to also bring on record such facts as the presence of the wind, it's direction, it's speed etc. Therefore, if the prosecution had sought to rely upon the wind factor, it was necessary on the part of the prosecution to also bring on record such facts as the presence of the wind, it's direction, it's speed etc. at the time when the incident took place and other relevant facts such as distance between the shed of the complainant and the place where fire was lit by the appellant, nature of matter set on fire by the appellant as all these facts were necessary to incriminate the appellant through the principle of blame worthiness of mind disclosed by possession of relevant knowledge. However, no such evidence has been brought on record and therefore, by resorting to presumptions and assumptions without there being really any evidence in that regard, criminal liability through culpable knowledge on the part of the appellant-accused cannot be fastened upon him, as has been done by the learned Ad-hoc Additional Sessions Judge. 9. It is for the afore-stated reasons that I am of the view that the learned Ad-hoc Additional Sessions Judge has completely misdirected himself in this case and without there being any evidence regarding drawing of necessary presumption of culpability as required to constitute an offence punishable under Section 436 of the Indian Penal Code, the learned Ad hoc Additional Sessions Judge wrongly found appellant-accused as guilty of the offence punishable under Section 436 of the Indian Penal Code. The impugned judgment and order deserve to be quashed and set aside and the appellant-accused deserves to be acquitted of the offence with which he has been charged in this case. 10. In the result, the impugned judgment and order are hereby quashed and set aside. 11. The appellant-accused is acquitted of the offence punishable under Section 436 of the Indian Penal Code. 12. Fine amount be refunded to him. 13. His bail bonds stands discharged. Appeal is disposed of.