Criminal Appeal (SJ) No.293 of 1997 **** Against the judgment, dated 03.10.1997, passed by Sri B.K. Pandey, Additional Sessions Judge, V, Bhagalpur, in S. Tr. No. 318 of 1986 **** 1. Sajjal Mistry @ Sajjan Mistry, son of late Giro Mistry 2. Nand Kishore Mistry @ Nankeshwar Mistry, son of late Bhagwan Mistry, both residents of village Nadiyama, P.S. Sabour, district Bhagalpur .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr. Uma Kant, Adv. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellants have been convicted under Section 436/34 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as alleged that while informant written statement in his potato field then Anuplal Mistry came and disclosed that he has got the papers of the land from Rajendra Thakur and not to take out the potato on which there was verbal altercation and on the date, itself, at 04.00 p.m., Anuplal Mistry, Sajjal Mistry and 2 Nankeshwar Mistry came and opposed and Sajjal Mistry sprinkled kerosene oil by getting over the roof of the house which was built of straw and when the informant ran to catch hold of Sajjal Mistry then Nankeshwar Mistry caught hold the informant and Anuplal Mistry set on fire by which the house burnt to ashes along with the articles, about four mann paddy, one mann rice and other house hold articles of the house. 4. On the fardbeyan, first information report lodged and after investigation the charge sheet submitted, cognizance taken and case was committed to the Court of sessions where the charge was framed against three accused persons. However, Anuplal Mistry died during the pendency of the appeal and, hence, his name was deleted and proceeding dropped as case has been abated against him. 5. However, during the trial nine witnesses have been examined, who are P.W. 1 Prakash Thakur, P.W. 2, Shiv Nath Thakur, the son of the informant, P.W. 3, Mahendra Prasad Singh, P.W. 4, Gopal Thakur, P.W. 5, Khokha Das, P.W. 6, Jamun Mandal, P.W. 7, Banarshi Thakur, P.W. 8, Nathu Thakur, and P.W. 9, Nandlal Mandal, the investigating officer. The trial Court convicted the appellants. The investigating officer has found the burnt remains and the remains burnt articles, which have been proved, Exhibit 4 is the seizure list and P.W. 2, the son of the informant, on hulla of his father, came out and saw Sajjal Mistry with a tin of kerosene oil sprinkling along with Anuplal Mistry. P.W. 7 is the informant, who supported the prosecution case that Sajjal Mistry sprinkled kerosene oil, Nan Kishore Mistry caught 3 hold of the informant and Anuplal Mistry setting of fire though other witnesses, P.Ws. 1, 3, 5, 6 and 8 are not eye witnesses to the occurrence and on hulla they came and saw the house being burnt. However, P.Ws. 3 and 4 declared hostile and taking into consideration the evidence the trial Court convicted the appellants and sentenced, as stated above. 6. The learned counsel for the appellants, however, contends that only if is the eye witness to the occurrence. The son of the informant is not an eye witness about setting of fire though he was present in the house and the allegation of setting of fire is on Anuplal Mistry, who is dead not pressing the appeal and the role attributes to Sajjal Mistry is of getting over the roof and sprinkling kerosene oil, but, it was contended that there was no need to sprinkle kerosene oil as the house was of straw and could have sprinkled kerosene oil from the ground itself. The learned counsel for the appellants, however, contends that the occurrence is of the year 1984 and the accused persons has remained in jail for about one month during the trial and about a month after conviction and, hence, a lenient view may be taken. 7. However, taking into consideration the fact that the informant is the eye witness to the occurrence and supported the prosecution case about the setting of fire and role attributed to the appellants to have sprinkled kerosene oil by Sajjal Mistry, appellant no. 1, and when the informant tried to resist then Nan Kishore Mistry catch hold of him and, hence, both the appellants are involved in setting of fire. However, it has been contended that there was enmity cut both 4 ways and is no ground to disbelieve. P.W. 2 though is not eye witness to the occurrence of setting of fire, but, he claims to have seen fleeing away with the tin containing kerosene oil, the other witnesses though are not eye witness, but, P.Ws. 1, 6 and 8 had supported the prosecution case that on hulla they came and saw the house burnt and P.W. 8 has stated that Banarsi Thakur disclosed that Anuplal Mistry, Sajjal Mistry and Nan Kishore Mistry had setting fire in the house, hence, I find and hold that the prosecution has proved the case in aiding and abating the setting of fire and do not find any merit to interfere with the order of conviction recorded by the trial Court against the appellants. 8. However, having regard to the role attributed to the appellants of sprinkling kerosene oil and the occurrence is of the year 1984 and they have suffered a lot since 1984 and remained in jail for one month during investigation and trial and one month after conviction, hence, the ends of justice shall meet by sentencing the appellants for the period already undergone. 9. With the modification, this appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 02nd day of September, 2011, N.A.F.R., S.A.