1. The appellant in this appeal is Bhogilal Gordhandas who has been convicted by the learn-ed Sessions Judge, Kaira, at Nadlad, of an offence under Section 436 of the Penal Code and has been sentenced to suffer simple imprisonment for one day and also to pay a fine of Rs. 500/- or in default to suffer three months' rigorous imprisonment. The appellant has appealed against this order of conviction and sentence passed upon him by the learned Sessions Judge.
2. When this matter came up for admission before us, we ordered a notice of enhancement to issue against the appellant calling upon him to show cause why the sentence imposed upon him by the learned Sessions Judge, Kaira, should not be enhanced. It is in this manner that the abovementioned appeal and the review application have come up before us for hearing today.
3. The facts of the case which gave rise to the prosecution of the appellant may now beshortly stated. The charge against the appellant is that on 28-11-1954, at Umreth, he set fire tothe complainant's hut, Intending to cause or knowing it to be likely that he would thereby cause destruction of the said hut which was used as human dwelling or as a place for the custody of property.
According to the case of the prosecution the damage which was caused to the complainant by the fire was to a tune of Rs. 10/-. It is in this manner that the prosecution has charged the appellant with an offence under Section 436 of the Penal Code.
4. It is alleged against the appellant that he has a field near the railway station of Umreth. The distance between the field and the railway lines is a distance only of a few paces. On this field there was a hut.
This hut would appear to have been put up by one Keshav Dana. It was a hut made of grass. Originally Keshav Dana was residing inthe hut. About a couple of months before the date of this incident Keshav Dana went to his native place in Saurashtra. At that time he entrusted the hut to the complainant of the present case whose name is Shiva Ganda. Thereafter Shiva Ganda and his wife Bai Bachu started living in the hut. Speaking of the date of the incident, viz. 28-11-1954, the prosecution contends that in the morning of that day Shiva Ganda went to the bazar.
His wife Bai Bachu was alone in the hut. In the absence of Shiva Ganda the appellant went to the hut and called upon Bai Bachu to vacate the hut immediately. She replied that her husband was not at home, that he was expected to return shortly and that they would vacate the hut thereafter. The prosecution goes on to contend that thereupon the appellant took a match, lighted it and set fire to the hut. The hut was burnt down in the matter of a few moments, because it was a small hut and it was made of grass.
By the time Bai Bachu's husband, the complainant Shiva Ganda, returned there was no hut. There were ashes lying on the spot where there was originally a hut. He questioned his wife about it and she told him what had happened in his absence. She told him that the owner; of the field, viz. the appellant, had burnt the hut. After Shiva was informed by his wife in the abovestated manner, he went to the Umreth police station and filed a complaint against the appellant.
The investigation was started. The appellant was prosecuted and at the end of the trial, three out of the four Assessors found the appellant not guilty of the offence with which he was charged. One of the Assessors found the appellant guilty under Section 436 of the Penal Code. The learned Sessions Judge agreeing with the viewof the one Assessor found the appellant guilty under Section 438 of the Penal Code and, in view of the appellant's advanced age and also in view of the infirmity, viz. the disease of paralysis from which the appellant was suffering, the learned Sessions judge sentenced him to suffer -one day's simple imprisonment and to pay a fine Of Rs. 500/-.
It is from this order of conviction and sentence that the appellant has appealed to this Court. This Court, considering 'prima facie' that the sentence imposed by the Court below was inadequate, Issued a notice of enhancement against the appellant.
5. Now the case of the prosecution againstthe appellant rests on the evidence principally of witness Bai Bachu the wife of the complainant Shiva. It is no doubt true that the prosecution has also led the evidence of one Lavji Rama, but it may be pointed out that in our view the decision of the case must rest primarily upon our acceptance or rejection of the evidence given by Bai Bachu. Now this witnesa Bai Bachu has stated in the course of her evidence that originally the hut belonged to one Keshav Dana and when Keshav went to Saurashtra the hut was entrusted to the witness and her husband.
At the material time, viz. in the morning of 28-11-1954, the witness's husband had gone to the bazaar. In his absence the appellant went to her hut and asked to vacate. She said that her husband was away and that they would vacate the hut after his return. The appellant did not agree. Instead, he took a match, lighted it and set fire to the hut. According to this witness, at the time when the hut was set fire to, there were certain people at the railway station.
The witness says that one Lavji Rama was at the material time going towards her hut in order to drink water. One Shabhai Kalu was standing near the railway lines, and one Parbhat was also present, because he had gone there on hawking. Out of the abovementioned persons the prosecution has led the evidence of Lavji and Parbhat. The learned Sessions Judge has discarded the evidence of Parbhat but relied on the evidence of Lavji.
6. Now the question before us is whether we should rely on the evidence of Bai Bachu. The learned Advocate Mr. Ghaswala appearing for the appellant has contended before us that we should not act upon the evidence of this witness Bai Bachu, because she is a Baraf woman, belonging to a lower stratum of society. In our view, there is no substance in this ground. Birth is a matter independent of the volition of a person and simply because birth takes place in a particular community that would, in our opinion, be no circumstance either in favour of or against the evidence of that person.
The evidence of each witness would be judged upon the merits of that evidence, no matter whether the witness is a poor or a wealthy person. Therefore, we must reject the contention of Mr. Ghaswala that it was easier for this witness Bai Bachu, who is a poor woman, to tell lies on oath than it would have been the case with a wealthier person. There is no doubt that the hut in which this witness was residing with her husband was burnt down on that day.
The question before us is whether it was accidentally burnt down or whether it was deliberately set on fire by somebody else. It is upon the determination of this question that the fate of this case depends and when Bai Bachu has stated on solemn affirmation that the hut was not burnt down as a result of any accident but was set fire to by the appellant, we must seriously consider why we should reject the evidence Instead of acting upon it.
Mr. Ghaswala has contended before us that it was a small hut, 4' x 4', that it was only chest-high, that in all probability it caught fire when cooking was being done in the hut and that thereupon Bai Bachu becoming frightened of the-questions which might in course of time be put by the owner of the hut Keshav Dana, decided, In consultation with her husband, to Involve the appellant wrongly. We have taken thesesubmissions into consideration but we regret we do not see any force in them.
In a case of an accidental fire it was not necessary for Bai Bachu to involve the appellant. Fire may accidentally occur in a number Of ways, especially in the case of a hut which was made entirely of grass, for instance a person passing by with a lighted cigarette in his mouth might happen to drop a few cinders from the burning end of the cigarette and in that way also a hut might catch fire. Moreover, the distance between the hut and the railway lines was only a distance of less than half a dozen paces.
That being so, it might also be possible that the burning coal or cinder from the railway engine might happen to fall on the grass of the hut and in that manner also the hut might catch fire. That being so, if the witness Bai Bachu and her husband had wanted to make a case of accidental fire, they could have put forward an altogether different story without having to go to the length of involving the appellant wrongly in this case.
Mr. Ghaswala has contended that the appellant was sought to be wrongly involved in this case, because if the appellant had been involved, ft was possible that the appellant might pay come amount of money to the complainant and his wife by way of compensation. We are not impressed by these arguments.
7. Then Mr. Ghaswala has contended before us that the owner of the hut was Keshav Dana, that during the time Keshav was in occupation of the hut no incident of any description had occurred between Keshav and the appellant and that, therefore, It was improbable that on that particular morning, viz. on the morning of 28-11-1954, the appellant would have suddenly taken into his head to go to the hut and set fire to it after his demand for vacating the hut was met by Bai Bachu's reply that the vacating would be done after the arrival of her husband back from the bazaar.
We have considered this submission of Mr. Ghaswala also. It would appear that Keshav was permitted to put up a hut on this particular field of the appellant because he was to look after the crops, which were vegetable crops, of the appellant. Keshav used to pay some rent to the appellant and the rent was not in the Share of money, but it was in the shape of vegetables.
There is nothing brought out in the cross-examination of any of the prosecution witnesses in this case to suggest that the complainant Shiva was paying any rent to the appellant for residing in this hut or was doing the work of looking after the vegetable crops of the appellant.
It is, therefore, possible that the appellant might have taken into his head to ask Shiva's wife to vacate the house. The improbability suggested by Mr. Ghaswala, therefore, does not appear to us to be an Improbability.
8. Mr. Ghaswala has next contended that Bai Bachu's statement in evidence in chief that she and her husband had been staying in this hut for two or three months prior to Keshav's, going away to Saurashtra was an untrue state-ment when she stated that her goods worth Rs. 40/- or Rs. 60/- were in the hut and were burnt down. We are further told that Lavji was a got-up witness and that in so far as Bai Bachu helped her husband in getting up a false witness in the person of Lavji, her evidence should be considered as suspect evidence.
We are then told that according to this witness the train from Anand had arrived at the railway station of Umreth after the hut had been burnt down and that that being so, Lavji Rama who is alleged to have gone to Umreth from Anand that particular day, could not have witnessed the commission of the offence. We have taken this contention into consideration.
It appears to us that Bai Bachu was making an honest mistake when she said that the train from Anand had arrived at Umreth after the hut had been set fire to. It is possible that at the distance of time at which she was giving evidence, which was a distance of several months, her memory might have got mixed up and she might have made an honest mistake when she said that the train had arrived from Anand after the hut was burnt down.
This finishes all the comments which Mr. Ghaswala had to advance against the credibility of this witness Bai Bachu. We are not impress ed by these comments. In our view Bai Bachu is a truthful witness and we propose to act upon her evidence. Her evidence, in our opinion, clearly establishes that the hand which set fire to her hut was the hand of the appellant.
9. It is not necessary for us to deal with the evidence of Lavji in detail, because in our opinion the evidence of Bai Bachu is quite sufficient for sustaining the conviction of the appellant under Section 436 of the Penal Code. It is no doubt true that there are certain infirmities ia the evidence of Lavji. We would not rely upon the evidence of Lavji although at the same time we do not wish to suggest that he was a got-up witness.
All that we wish to say is that having re-gard to certain features of the evidence of Lavji, we would not have convicted the appellant on the basis of the evidence of Lavji alone, had there been no evidence of Bai Bachu. As in our view, the evidence of Bai Bachu standing by itself is sufficient for justifying the conviction of the appellant under Section 436 of the Penal Code, the infirmities in the evidence of Lavji would hardly matter.
The infirmities in respect of Lavji's evidence to which our attention is invited by Mr. Ghas-wala are that Lavji is a member of the community of Shiva and that that being so, his conduct after having witnessed the hut being set fire to by the appellant should have been different from what it was. According to Lavji, he wanted to go to the hut of Bai Bachu for drinking water but when he saw that the hut was set fire to, he did not go to the hut.
Instead he returned immediately to the railway station and went back to Anand. His police statement was not recorded till two days thereafter. It was recorded on the 30-11-3954, and even then it was because Bai Bachu and her husband had gone from Vareth to Anand to request him that as he had witnessed the commission of the offence he should go to the police and make a statement.
The witness has stated that if such a request had not been made to him by Shiva and, his wife, he would not have gone to the police and made the statement and would not have come forward to give evidence in this case. Mr. Ghaswala has contended that this conduct of the witness would be inconsistent with his having been an eye witness of the offence.
It is for these reasons that but for the evidence of Bai Bachu we would have been reluctant to sustain the conviction of the appellantfor the offence with which he is charged. So far as the details of the evidence of Lavji are concerned, he has stated that he had also seen the appellant taking out a match box and setting fire to the hut of Bai Bachu when she refused to vacate the hut in the absence of her husband.
10. So far as the evidence of Parbhat is concerned, the leamed Sessions Judge has not relied upon it. It is, therefore, unnecessary for us to go into the details of his evidence.
11. In view of the evidence of Bai Bachu the appeal must fail and the order of conviction recorded by the learned Sessions Judge against the appellant must be sustained.
12. So far as the review application No. 1075 of 1955 is concerned, it must be noted that setting fire to a residential hut belonging to another is always a serious offence because it is potentially capable of endangering lives of person and destroying property. In this particular case, normally we would have taken a serious view of the matter but for certain extenuating circumstances. The appellant is 78 years of age.
It would appear that although on the date of the offence he was not suffering from paralysis, he happened to become a victim of that disease after the offence was committed. As the learned Sessions Judge has pointed out in paragraph 9 of his judgment, on the date on which the evidence of witnesses was recorded by the learned Judge, the appellant had to be brought to the Court after being lifted up and his physical condition was very weak.
Taking these circumstances into consideration, we are of the view, having regard to the manner in which the offence was committed by the appellant, that the ends of justice would be met in this case by enhancing the sentence imposed upon him by the learned Sessions Judge to a sentence of three months' rigorous imprisonment. We do pass that sentence accordingly. The sentence if fine is confirmed. The sentence in default of payment of fine is also confirmed. Warrant to issue for the arrest of the accused.
13. Order accordingly.