D.K. Trivedi, J.

1. This criminal appeal is directed against the judgment and order dated 17-5-1982 passed by the IInd Addl. Sessions Judge, Barabanki, Appellant Smt. Perbata was convicted under Section 436 IPC and sentenced to 2 years RI.

2. The prosecution case in brief was that on 11-5-80 at about 9.00 a.m. the accused happened to pass over the Sehan of the complainant and she received some injury from the pegs lying on the Sehan. It is said that she (accused) set fire to the Tatia of the Marha and caused a loss of Rs. 400/-. An FIR was lodged by PW 1 Ram Chandra on the same day at about 12.20 in the noon at police station Nasauli. The First Information Report is Ex. Ka-1. The investigation was conducted by Sri Radhey Shyam Pandey PW 3 S.O. Musauli.

3. In support of its case, the prosecution examined two witnesses namely PW 1 Ram Chandra and PW 2 Sohan Lal as eye witness. PW 3 Sri Radhey Shayam Pandey is the Investigation Officer. On the other hand, the Appellant accused denied the prosecution case and she examined Bansi Lal DW 1 wbo stated that the Marha of Satgur was burnt by the complainant. The learned trial judge after considering the evidence on record believed the statement of PW 1 and PW 2 and convicted the Appellant under Section 436 IPC. Aggrived by the said judgment and order the Appellant filed the present appeal in this court.

4. I have heard the Learned Counsel for the Appellant as well as the learned Government Advocate.

5. The main contention of the Learned Counsel for the Appellant is that no case under Section 436 IPC is made out and the offence as alleged by the prosecution is made out only under Section 435 IPC. He pointed out that according to statement of PW 1 itself the Marha was burnt which was structure made by the Chhappar and therefore, the said structure cannot be said to be the house as defined under Section 436 IPC. He further pointed-out that according to statement of PW 1 there was no necessary furnishing in the Marha and the Marha was covered by Tatia. In para 13 of the cross-examination he admits that :

Mandhe me Uttar Pashim purab tatia lagi thi. Dakhin ki taraf khula tha.

From the perusal of the statement of PW 1 it appears that the structure made is only by Chhappar and not by bricks and it has no necessary furnishing such as doors, bars etc. Learned Counsel for the Appellant cited a case of Smt. Jasharero v. State of Haryana reported in 1980 CriLJ 46 (Punjab) and Haryana) in which relying on the case of Allahabad High Court reported in 1952 CriLJ 299 held that the structure made of straw and not of bricks and morter may be considered a building, if it has got necessary furnishing needed for a building such as doors bar etc. Section 435 IPC is wide enough to include the entire incidental loss sufferd by the owner. But the distinction between the offence under Section 435 IPC and 436 IPC is that Section 435 IPC envisiged mischief by setting fire to any property other than building whereas Section 436 IPC envisige mischief by fire to any building which is ordinarily used as a human dwelling including place of custody of property or place of person. An ordinary thatched shed resting on bamboos or bricks piller having no doors cannot be treated as building within the meaning of the term used under Section 436 IPC. In my opinion in the per -- sent case Marha has a thatched shed resting on piller having no doors etc and therefore, it cannot be treated a building as defined under Section 436 IPC. In view of facts stated above, in my opinion, the Appellant should be convicted under Section 435 IPC. The conviction under Section 436 IPC is. therefore, set-aside and she is convicted under Section 435 IPC. The Learned Counsel for the Appellant pointed out that she is not a previous convict and she is a lady and therefore, it would not be proper to sent her again to the jail. According to him the Appellant has already served-out the sentence of more than 1 month and therefore, sentence of already undergone is sufficient, in this case. In my opinion, the contention of the Learned Counsel for the Appellant has force and it would not be proper to send her again to jail. She has already served-out the sentence of more than 1 months. Therefore, in my opinion ends of justice would meet if she has been awarded a sentence of already undergone under Section 435 IPC. She is on bail. She need not to surrender. Her bail-bonds are hereby cancelled.