JUDGMENT Amar Singh Chauhan, J. 1. Challenge in this appeal is to the judgment and order dated 21.4.1982 passed by the then Vth Additional District and Sessions Judge, Bijnor, in Sessions Trial No. 32 of 1981 whereby the appellant Shiam Singh & other co-accused have been convicted and sentenced under Section 436 /34 I.P.C. to Rigorous Imprisonment for three and half years each and also have been directed to pay a fine of Rs. 500/- each with default stipulation. 2. During the pendency of appeal, appellant no. 2, Jaggu Singh has died. Therefore, appeal against him has become infructuous and stand abated. 3. Briefly stated, the facts giving rise to this appeal are that the aforesaid case was registered under Section 436 I.P.C. on the basis of a written report dated 12.6.1980 at 6: 30 AM at P.S. Sherkot submitted by the informant (P.W.1), Smt. Sumentra, in respect of an occurrence which took place in the night between 11th and 12th day of June, 1980 at about 4 A.M. in Mohalla Naudhana of Sherkot Town. It is alleged that at the relevant time when Smt. Sumentra wife of Kripal Singh awoke from the sleep and came out of the house, she saw the accused Jaggu Singh and Shiam Singh talking with each other outside her Haveli and then she at once got her brother-in-law, Shish Ram, mother-in-law and others awoken from the sleep and then all the persons went out to see the accused and found that the accused Shiam Singh gave a match box to Jaggu Singh, who set fire to hut adjoining to the house, as a result thereof, the huts of Bhopal Singh and his brother Krishna, Smt. Sumentra, Sheo Nath Singh and others were burnt due to fire. Having heard a noise, the people of the village also rushed to the place of incident and made efforts to extinguish the fire. As such, after necessary investigation, the police submitted a charge sheet against the appellant under Section 436 IPC. 4. On the basis of accusation levelled against the Appellant/Accused, the trial Court framed necessary charges against both the Appellant/Accused named above in respect of the offences under Section 436 of Indian Penal Code to which each one of them pleaded not guilty and claimed to be tried. 5. At the trial, in support of its case, the prosecution examined as many as 4 witnesses. 6. 5. At the trial, in support of its case, the prosecution examined as many as 4 witnesses. 6. PW 1, Smt. Sumentra is the informant of the case and deposed that at the time of incident, when she and her family members were sleeping in the court-yard of the house, she awoke from the sleep at about 4 AM and came out in order to get her small children ease away and then she saw the accused Jaggu Singh and Shiam Singh standing near the Baithak of Bhopal and they were talking with each other, then she came back to the Haveli and got her mother-in-law Bharirthi, sister-in-law Indro and brother-in-law Shish Ram awoken from the sleep and then all of them went out and saw the accused Shiam Singh giving a match box to Jaggu Singh, who was setting fire to the residential huts of these perons. Having heard a noise, several persons of the Mohalla reached there and then the accused went away. As a result of fire, several huts including house hold goods kept therein and five pigeons belonging to the informant, Smt. Sumentra and others were burnt. Thereafter she got the written reprot lodged after assinging the same from Shish Ram, which was proved by this witness (Ext. Ka. 1). 7. PW 2 is Shish Ram, who has fully supported the statement of Smt. Sumentra (PW 1). According to him, he also saw the accused Shiam Singh giving match-box to Jaggu Singh and Jaggu Singh putting fire to the residential huts, as a result thereof, several residential huts were burnt. He further deposed that on the dictation of her aunt, Smt. Sumantra (PW 1), he had written the report (Ext. Ka.1). 8. PW 3, Magan Singh, who is resident of Sherkot town, has also admitted in his evidence that after having seen a fire at the house of Sumentra and others, he rushed towards that place and saw the accused Jaggu Singh and Shiam Singh running away from the houses of Smt. Sumentra (PW 1) and others and then Smt. Sumentra also told him that Jaggu Singh and Shiam Singh had set fire to her huts. He further deposed that he has also tried to extinguish the fire but the huts could not be save from fire. 9. PW 4 is Ambey Saran Gupta who was Station officer at P.S. Sherkot at that time. He further deposed that he has also tried to extinguish the fire but the huts could not be save from fire. 9. PW 4 is Ambey Saran Gupta who was Station officer at P.S. Sherkot at that time. He has also admitted in his evidence that on 12.6.1980, on the basis of the written report of Smt. Shakuntala Devi, Constable Nager Dutt, he lodged a Chik FIR which he proved as (Ext. Ka.2) and also prepared the G.D. entry on 12.6.1980 at 6: 30 AM. He proved the carbon copy of GD at (Ext. Ka.3). He further deposed that after necessary investigation, he inspected the place of incident, took a sample of Rakh or ash from the burnt huts and prepared Fards (Exts. Ka.4, Ka.5, Ka.6 and Ka.7) for the same. He also prepared site plan (Ext. Ka.8) of the place of incident, took the statements of witnesses and after completing the investigation, submitted a charge sheet (Ext. Ka-9) against the accused named above. 10. After the prosecution evidence, the statement of the accused was recorded under Sections 313 Cr.P.C. in which both have stated that they have been falsely implicated in this case as Shiam Singh and his brother Sher singh were witnesses in a criminal case which was lodged by Nihal Singh against the husband, brother-in-law of Smt. Sumentra and others. 11. The defence also examined one witnesse in support of its case. 12. DW 1 is Ramesh Chand. He has also admitted in his evidence that a dispute was going on between the two parties of Harijans in Mohalla Naudhana, Sherkot Town consisting Sher Singh, Nihal Singh and Shiam Singh as one party and Munnu Singh, Kripal and others as other party. Several criminal cases were lodged against both the parties. To settle their dispute, both the parties have appointed four Punches and one Surpanch, out of whom, he was also one Punch. After hearing the parties and having made enquiry, he gave an award, copy of which is enclosed as (Ext. Kha-1). A copy of judgment of IInd Addl. Sessions Judge, Bijnor dated 15.12.1981 in S.T. No. 542/90 (State Vs. Munnu Singh and others) has also been given by accused which is annexed as (Ex. Kha2). 13. After hearing the parties and having made enquiry, he gave an award, copy of which is enclosed as (Ext. Kha-1). A copy of judgment of IInd Addl. Sessions Judge, Bijnor dated 15.12.1981 in S.T. No. 542/90 (State Vs. Munnu Singh and others) has also been given by accused which is annexed as (Ex. Kha2). 13. The learned Additional District & Sessions Judge, Bijnor, after perusing the record, hearing the learned counsel for the parties and considered the entire evidence of the prosecution as well as the defence evidence came to the conlcusion that the prosecution has established the charge under Section 436 IPC of set fire on the huts of Bhopal Singh and his brother Krishna, Smt. Sumentra, Sheo Nath Singh and others by both the accused named above. It is also observed that the incident is said to have taken place in the night 11th and 12th day of June, 1980 at about 4 A.M. and the report of the said incident was lodged by Smt. Sumentra at 6: 30 AM at P.S. Sherkot situated at a distance of one mile from the place of incident and as such there is no unreasonable or suspicious delay in lodging the FIR. It is further observed that so far as the statement of defence witness Ramesh Chand (DW 1) is concerned, Smt. Sumentra (PW 1) has denied it that any settlement of dispute took place between her and the accused and any arbitrators were appointed by her to settle the dispute. Moreover, if any agreement had arrived at between the parties and the arbitrators had given any award (Ext. Kha/1) then the same is quite illegal as it is against the public policy and is hit by Section 23 of the Indian Contract Act and, therefore, convicted and sentenced them as has already mentioned hereinabove, vide judgment and order, hence this appeal questioning the said judgment. 14. Aggrieved from the said order, present appeal has been filed. 15. Heard learned counsel for the appellant, learned AGA and perused the record. 16. Learned counsel for the appellant mainly assailed the impugned judgment and order of conviction and sentence on three counts. 14. Aggrieved from the said order, present appeal has been filed. 15. Heard learned counsel for the appellant, learned AGA and perused the record. 16. Learned counsel for the appellant mainly assailed the impugned judgment and order of conviction and sentence on three counts. Firstly, that the Section 436 IPC is attracted only when the mischief caused result in distruction of building but in this case building is said to be "hut" situated adjoining to the house of the complainant was not said to be used as a place of worship or as a human dwelling or as a place of custody of property. No specific property was shown as damage property nor Furd was prepared. Consequently, no intention was assigned to the appellant behind the mischeif as the role of lighting fire was assigned to co-accused Jaggu and the role of the present appellant, Shiam Singh is assigned only to hand over the match-box to Jaggu, the main accused and for what purpose the match-box was provided was not shown in the prosecution story. Secondly, eye witness account is not trustworthy. Thirdly, there is no eye witness account of the mischief as PW-1 Smt. Sumentra has stated in her examination that when she awoke from the sleep at about 4 A.M. and came out in order to get her small children ease away and then she saw the accused Jaggu Singh and Shiam Singh standing near the "hut" and were talking with each other then she came back to the Haveli and got her mother-in-law, Bharirthi, sister-in-law, Indro and borther-in-law, Shish Ram awoken from the sleep and then all of them went out and saw the accused Shiam Singh giving a match-box to co-accused Jaggu Singh who was setting fire to the residential huts of the persons. This story does not inspire truth as none will remain present for such longtime at the occurrence place who have criminal intent to set fire. Five pigeons were said to be burnt but neither Furd was prepared nor autopsy was conducted. 17. In this case mischief was said to be committed in the "Hut". The word "hut" is defined in the WEBSTER dictionary as "a small house, hovel, or cobin; a mean lodge or dwelling; a temporary shelter". Five pigeons were said to be burnt but neither Furd was prepared nor autopsy was conducted. 17. In this case mischief was said to be committed in the "Hut". The word "hut" is defined in the WEBSTER dictionary as "a small house, hovel, or cobin; a mean lodge or dwelling; a temporary shelter". Even in this dictionary meaning of the word "hut" there is nothing to suggest that a house made of thatched roof, straw, reeds and mud cannot be considered as a "building" used for human dwelling. Under the circumstances, the idea that a "hut" made of thatched roof, straw, reeds and mud would not be covered by the meaning of the word "building" simply because it is not made of bricks, mortar and other building materials, which are used for constructing a pucca structure, appears to be totally foreign to the meaning which the Legislature intended to give to the word "building" used in Section 436 I.P.C. It is observed in the case of State of Gujarat Vs. Vedva Vaghari Moti Nagji, [ 1973 CrLJ 148 : (1972) 13 Guj LR 684] that it is undoubtely true that Section 436 , I.P.C. contemplates the offence of mischief by fire with intention to cause destruction of any "building" which is ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. Therefore, the question is what is the meaning of the word "building". In the case, it is observed that the word "building" connotes something which is exclusively used for human habitation of a person or group of persons including family. 18. Section 436 reads as under: "S.436. 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 liabe to fine." 19. In the case in hand, it has not come in the evidence of the prosecution that the "hut" in question was used for dwelling purpose or used as a place of worship or as a place for custody the property. In the case in hand, it has not come in the evidence of the prosecution that the "hut" in question was used for dwelling purpose or used as a place of worship or as a place for custody the property. Section 436 I.P.C. is attracted only when the mischief caused result in distruction of the building and the "hut" cannot be said to be building used for the purpose mentioned above. Though the "hut" of one Shiv Nath Singh is also shown to have been burnt but he is not named as eye witness in the report. Preponderance of probability regarding occurrence pointed out in the statement under Section 313 Cr.P.C. that they have been falsely implicated in this case because Shiam Singh accused and his brother Sher Singh were witnesses in the criminal case which was lodged by Nihal Singh against the husband, brother-in-law of Smt. Sumentra, the complainant, which shows that there is a prior enmity between the parties. The enmity cuts both ways and if the complainant has a reason to falsely implicate accused, the accused also had reason to commit the crime. 20. In view of what has been discussed above, the appeal is allowed and the conviction and sentenced dated 21.4.1982 passed by the Vth Additional District and Sessions Judge, Bijnor, in Sessions Trial No. 32 of 1981 under Section 436 is set aside and after extending the benefit of doubt to the accusedppellant, the appellant is acquitted of the said charges. He is on bail. The bail bond is cancelled and sureties stand discharged. 21. Office to communicate the order to the court concerned.