Crl.A. 141/2003 BEFORE HON’BLE MR JUSTICE D.BISWAS, CHIEF JUSTICE(ACTING) This appeal is directed against the judgment dated 6.3.2003 passed by th e learned Sessions Judge, Nagaon in Sessions Case No 49(N)/2001 whereby the accu sed appellants have been convicted under Section 436/447/34 IPC and sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- , in defau lt , to rigorous imprisonment for another three months under Section 436/34 IPC and further to rigorous imprisonment for one month under Section 447/34 IPC. 2. The prosecution case as unfurled in the FIR is that on 16.1.98, the accused persons set a house belonging to the informant on fire. They also ra nsacked the house of his brother. On receipt of the ejahar, Police investigated the case and, in due course, submitted chargesheet against Rabiram Kalita, Santo sh Kalita, Upen Kalita and Prafulla Kalita. Prafulla Kalita was declared abscond er. Therefore, charges were framed against the remaining three accused persons u nder Sections 447/436/34 IPC. On conclusion of trial, the aforesaid judgment of conviction and sentence was passed. 3. Mr. JM Choudhury, learned senior counsel for the appellants argu ed that the evidence adduced by the prosecution is not sufficient enough to warr ant conviction of the accused persons. That apart, Mr Choudhury argued that the house in question was not ordinarily used as a place of worship or as a human dw elling or as a place for the custody of property and, therefore, the conviction of the accused persons under Section 436 IPC cannot be maintained. Mr. Choudhury further pointed out that the evidence on record disclose involvement of the arm y personnel with the alleged crime. 4. In this case, five P.Ws including the I/O have been examined by the prosecution. The defence examined none. The defence case is of complete deni al. 5. It would appear from the evidence of P.W.1 Mohendra Nath Bora th at at the time of occurrence he was in the house of one Prafulla Master. One boy informed him that the accused persons set fire to his ’Pam’ house. He came to t he place of occurrence and found the accused persons standing there. In his cros s-examination he stated that he had not seen who had set fire to the house. From his evidence, it cannot be said definitely that the accused persons set fire to the ’Pam’ house. 6. P.W.2 Bakul Ch. Bora stated that he came to know that the ’Pam’ house was set on fire by the accused persons. His house is at a distance of 11/2 k.m. Having come to know, he went there and, thereafter, contacted the Police a nd filed the ejahar (Exhibit-2). The evidence of P.W.2 also does not incriminate the accused persons. P.W.3 Naren Saikia stated that around 2 p.m. on the date o f occurrence army personnel came in army vehicle and went to the house of Mohend ra Bora and he saw the house of Mohendra Bora burning. He had also seen Suren @ Prafulla Kalita. He further stated that he did not visit the place of occurrence . The witness was declared hostile. Nothing could be elicited out of him to show that the accused persons had set fire to the ’Pam’ house. 7. P.W.4 Pabin Saikia also stated that some people came in army veh icle. Accused Upen Kalita and one Suren Kalita came with the army. Upen and Sure n demolished the house and set it on fire. Police came later on and seized certa in articles. Exhibit-1 is the seizure list. In his cross-examination he stated t hat police came after 2/4 days. He further stated that the accused persons had f iled a GR case against him. The case was still pending. 8. Of all the four witnesses, only P.W.4 stated that Upen and Suren had demolished the house of Mohendra Bora and set it on fire. The other three w itnesses have not seen the accused persons setting the house on fire. Only P.W.4 has made incriminating statement against accused Upen Kalita. He has not stated anything against accused Rabiram Kalita and Santosh Kalita. This means his evid ence cannot be fully relied upon if we accept the prosecution version that accus ed Rabiram, Santosh and Suren are the persons who set the house on fire. That ap art, this witness is not in good terms with the accused persons as they had file d a GR case against him. Therefore, it would be unsafe to rely upon the evidence of P.W.4 to convict the accused persons. The evidence of P.W.5 Hari Charan Path ak is formal in nature and does not help the prosecution case. 9. In view of the above discussion, I am of the considered opinion that all the three accused persons are entitled to acquittal on benefit of doubt . 10. In the result, the appeal is allowed. 11. The impugned judgment of conviction and sentence is hereby set a side. The accused persons are set at liberty forthwith. The bail bond, if any ex ecuted, shall stand discharged.