Criminal Appeal (SJ) No.134 of 1999 **** Against the judgment, dated 18.05.1999, passed by Sri Braj Kishore Prasad Gupta, Additional Sessions Judge, III, Buxar, in S. Tr. No. 226 of 1985 **** 1. Dipan Rai @ Bipin Bihari Rai 2. Damari Rai, both sons of late Raja Rai 3. Kawalpati Rai, son of late Shiv Das Rai 4. Shree Ram Tiwari, sonof late Ram Naresh Tiwari All residents of village Arjunpur, P.O. Arjunpur, P.S. Buxar (Industrial) district Buxar .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Ranbir Singh, Adv. as amicus curiae For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. No body appears on behalf of the appellants. 2. Mr. Ranbir Singh, Advocate, prays and is allowed to appear as amicus curiae on behalf of the appellants. 3. Heard learned counsel for the appellants and the State. 4. The appellants have been convicted under Section 435 of the Penal Code and sentenced to undergo rigorous imprisonment for one year each. 2 5. The prosecution case, as alleged, is that on 01.04.1982, one Dharam Raj Rai lodged a written report that when he was in his palani by the side of his khalihan then the accused, Dipan Ra @ Bipin Bihari Rai, Damari Rai, Kawalpati Rai and Shree Ram Tiwari came, armed with lathi, and garasa. Damari Rai sprinkled kerosene oil on bundles of the crops and Bipin Bihari Rai put fire from the match on which the informant raised alarm and Shree Ram Tiwari push the informant in the burning bundle by which the shirt and dhoti of the informant burnt. On alarm, witnesses, Nand Kumar Rai, Rama Shankar Rai and Gupteshwar came and saw the occurrence. The motive behind the occurrence is due to old enmity. 6. On the said fardbeyan the first information report lodged. The police after investigation submitted final form and the same was accepted by the Additional Chief Judicial Magistrate, Buxar. However, the case proceeded on protest. 7. During the trial four witnesses were examined. 8. The defence of the accused persons is false implication due to prior enmity and has adduced documentary evidence to support their contention which is certified copy of the judgment in which the witnesses are the accused in a case lodged by the appellants. 9. The trial Court, taking into consideration the evidence of the witnesses acquitted the appellants for offence under Section 307 of the Penal Code, but, convicted for offence under Section 435 of the Penal Code and sentenced, as mentioned above. 10. However, taking into consideration the evidence of 3 the witness, P.W. 3 Gupteshwar Rai, has stated in paragraph 12 of his cross examination that the time of occurrence he was fetching water. There was no one present in the khalihan of Dharam Raj and Rama Shankar and Nand Kumar came about five minutes after the occurrence and at that time the fire had set in and the accused persons had fled away. However, the complainant claims that he was caught hold by the appellants and was thrown in the fire, but, only his shirt and dhoti burnt and no injury on his person took place. Hence, from the evidence of P.W. 3 the evidence of P.Ws. 2 and 4 stands contradicted. P.W. 2 in his cross examination stated that after the occurrence 100-150 persons collected after twenty minutes of the setting on of fire which includes Dharam Raj whose khalihan was burnt. The trial Court though took into consideration this evidence to hold that offence under Section 307 of the Penal Code is made out. However, from the evidence of the witnesses, it is apparent that the time when fire was set in these witnesses was not there at the time of occurrence, hence, the prosecution case that the appellants set on fire the bundles of crops falls on ground. However, the enmity has been admitted and the witnesses as well as the informant were accused in a case lodged by the defence. 11. Having regard to the facts and circumstances, the case instituted by Dharam Raj was invested by the police and final form submitted and the enmity of the witnesses have been established, Exhibits “D” and “D/1” and evidence of the witnesses suffers from contradictions and inherent improbabilities. 4 12. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts so the order of conviction and sentence, recorded by the lower Court, is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 09th day of December 2011, N.A.F.R., S.A.