Criminal Appeal (SJ) No.237 of 1998 ****** Against the judgment and order of conviction dated 04.06.1998 passed by Sri Jitendra Kumar Sinha, learned Additional Sessions Judge – II, Munger in S. C. No. 324 of 1992. ****** 1. Shashi Tanti @ Shashi Bhushan Tanti, Son of Ganga Tanti. 2. Mukesh Tanti, Son of Late Bishwanath Tanti. 3. Rajendra Tanti, Son of Late Pudo Tanti. 4. Bouku Tanti @ Bahadur Tanti, Son of Narayan Tanti. 5. Peru Tanti, Son of Late Bengali Tanti. 6. Ajay Tanti, Son of Deeplal Tanti @ Anil Lal. All residents of village Mulkichak, P.S. – Muffasil, District – Munger. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Sanjeev Ranjan, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1, namely, Shashi Tanti @ Shashi Bhushan Tanti has been convicted for the offence under Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and all the appellants have been convicted for the offence under Section 436 and 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. However, no separate 2 sentence has been passed against the appellant no. 1 for the offence punishable under Section 436/149 of the Indian Penal Code. 3. The case proceeded on the protest-cum-complaint petition filed by the complainant Surendra Tanti who had earlier filed a written report Ext. 2 on 16.05.1988 to the Officer-In-Charge, Muffasil, Police Station alleging therein that on 16.05.1988 at about 2:00 P.M when he returned to his house then saw fire has set in the house and several people are setting off the fire and then mother Jamni Devi disclosed that Shashi Tanti and Mukesh Tanti had came and were abusing and they asked where is Surender. The mother disclosed that Surender is not here. Then Mukesh commanded to set on fire on which Shashi set on fire the house of Surender. The motive alleged is that there is a land dispute and informant had filed a case under Section 144 of the Cr.P.C. On the written report First Information Report was lodged. Police after investigation submitted final form. Then the informant-complainant filed protest-cum-complaint petition. However, in protest-cum- complaint he names six persons as accused with allegation that his mother Jamni Devi disclosed that Sashi and Mukesh came armed with pistol. Rajendra Tanti, Boku Tanti, Peru Tanti, Ajay Tanti all armed with Lathi, Bhala and Garasa abused and on command of Mukesh, Sashi set on fire. The complaint filed for the offence under Sections 147, 148, 149, 436 and 34 of the Indian Penal Code and named six 3 persons as a witness thereafter the final form accepted, case proceeded by taking cognizance on protest-cum-complaint. However, the said protest-cum-complaint was also dismissed against which a revision was preferred and the learned 4th Additional Sessions Judge, Munger in Cr. Revision No. 472 of 1989 set aside the order of dismissal of complaint and directed further inquiry in the matter on which the summons were issued against accused persons after taking cognizance and subsequently case was committed to the court of Sessions. After commitment charge was framed under Section 436 of the Indian Penal Code against Shashi Tanti and Sections 436 and 149 against all the six appellants. 4. During the trial four witnesses were examined. P.W.1 and 2 claimed to be eye witness and P.W. 3 formally proved protest-cum- complaint petition, Exts. 1 and 2 are the formal First Information Report. Ext. 3 written report on the basis of which First Information Report drawn and P.W. 4 is complainant. Defence proved Ext. A notice of 144 of the Cr. P. C to show the land dispute. The trial court taking into consideration the evidence of parties convicted and sentenced the appellants as stated above. 5. The learned counsel for the appellants contended that in written report Ext. 3 the fardbeyan of the complainant he stated that mother disclosed the name of two persons but in complaint he has stated 4 mother disclosed name of six persons. In the complaint petition six persons named as witness but only two of them examined who were not examined by police during investigation and hence development in prosecution case. 6. In view of submission, I proceed to consider the evidence of witnesses. The prosecution case in the written report that when informant came he saw house burning the mother disclosed that two persons Mukesh and Sashi came. They asked where is Surender. The mother said she does not know, then on command of Mukesh Tanti accused Shahi Tanti set on fire. However, in protest – cum – complaint Ext. 1 six persons named as accused and the offence alleged under Sections 147, 148 and 149 apart from 436 of the Indian Penal Code six persons were named as witness including the mother of the informant. Out of six persons mentioned in complaint petition only two persons P.W. 1 and 2 have been examined. However, P.W. 1 in his evidence stated that he was at his house. He came on Hulla at the house of Surendra then saw six persons armed with Lathi and pistol and setting on fire. Accused persons fled away after setting in fire while fleeing away they assaulted mother of Surender by Lathi. P.W. 2 has also stated that he heard the Hulla of mother of Surendra and went there and then found accused persons there who set on fire. The accused person while receding assaulted the mother of Surendra by Lathi. P.W. 3 is 5 formal and P.W. 4 has stated that he learnt from mother about setting on fire but mother has not come to depose nor injury proved and hence evidence of P.W. 4 is hit by hearsay. 7. Hence, from the nature of evidence, it is apparent that the prosecution case developed from stage to stage. The name of two person in written report disclosed by mother. Then in protest-cum- complaint four persons added and then development that mother was assaulted but neither mother nor injury report proved. However, in written report there was assertion that the accused person came and there was any Hulla. However, P.Ws. 1 and 2 have deposed that they came on Hulla is itself a development in prosecution and came their evidence stands contradiction to their previous statement before the Magistrate. 8. Hence, under the facts and circumstances, the appellants are entitled to benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt. Hence, the order of conviction and sentence recorded by the learned lower court is set aside and hence, the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 5th August, 2011. N.A.F.R./Kundan.