Criminal Appeal (SJ) No.17 of 1997 **** Against the judgment, dated 10.01.1997, passed by Sri Saket Bihari Ambast, Additional Sessions Judge, VI, Rohtas at Sasaram, in S. Tr. No. 358 of 1989 **** 1. Raghu Nath Sharma, son of Ram Naresh Sharma, resident of village Koran, P.O. Jigana, P.S. Dinara, district Rohtas 2. Kanhaiya Sharma, son of Bhekh Raj Sharma, resident of village Tenduni, P.S. Bikramganj, district Rohtas .. Appellants Versus The State Of Bihar ..Respondent **** For the Appellants .. M/S Subhash Chandra Dubey & Umesh Narayan Dubey, Advs. For the Respondent .. Mr. Sujit Kumar Singh, 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 by the informant that on 20.05.1988 at about 01.00 a.m. Kanhaiya Sharma, Bhekhraj Sharma, wife of Bhekhraj Sharma and Raghunandan Sharma, the brother-in-law of Bhekhraj Sharma came to his house and they severely abused and 2 even threatened to set on fire the house and, thereafter, they ran towards the back of his house and set on fire. The, further, case of the prosecution is that the informant saw Bhekhraj Sharma setting on fire and when the fire setting and flame starts then the informant and his wife made hulla to save and then several people of the village came and seeing the villagers coming the accused persons fled away. The informant claimed that he has identified the accused persons in the flame of the fire. He has, further, stated the house hold articles of the house burnt to ashes due to fire and the villagers come and set off the fire. It is, further, alleged that in the process of setting off the fire his wife got injury on his forehead and worth of the burnt articles are about Rs.2,500/-. The motive for the occurrence is that he has purchased 10 dhurs of land from Bhekhraj Sharma and Bhekhraj Sharma wanted to recaptured the land and 2-3 days prior to the Officer-in-Charge has come and abused and threatened to assault and burning the house to ashes. 4. On the fardbeyan, the first information report lodged and after investigation the charge sheet submitted, the cognizance taken, and the case was committed to the Court of sessions where after framing of the charge trial proceeded and during the trial ten persons were examined as witnesses. However, during the trial P.W. 1 did not support the prosecution case and declared hostile though supported the setting of fire. P.Ws. 2 and 4 were tendered. P.W. 7 did not support the prosecution case about the identification of the accused and P.W. 9 has stated that he learned about the occurrence in the morning from 3 other persons. However, P.W. 3, the wife of the informant, supported the prosecution case about the setting on fire and identification of the accused persons in the electric light. P.W. 8 is the informant himself and also come to support the prosecution case about the setting on fire and the accused persons came and asked to open the door, but, he did not open the door and then he opened the door on their threat to set on fire and P.W. 6 has come to support the prosecution case that on hulla when he got up then saw the accused persons fleeing away and identified them at a distance of 50-60 yards in the flame of fire from their back. P.W. 3 has stated that the accused persons came at the door, abuse and threatened then the accused persons went away in the west and Bhekhraj Sharma set on fire and she identified them in the electric light and she got injured by the fire. However, in her cross examination she has stated that at the time of occurrence she and her husband had not slept, the door was open and before setting on fire there was verbal altercation between the accused and her husband for about half an hour on the darwaza and before setting on fire several persons of the village have collected there and, further, the doctor though found the injury on the person of wife of the informant and his daughter, but, those injuries were of hard and blunt substance and not burnt injury. However, P.W. 8 proved the seizure list, but, the seized articles were not present in Court and the investigating officer has not been examined. 5. The case of the defence is that the witnesses have deposed falsely and the appellants have falsely been implicated and the 4 false implication due to the enmity with regrd to the land on which marai (hut) was standing and no occurrence as alleged has taken place. 6. Taking into consideration the evidence the trial Court convicted the appellants. 7. The learned counsel for the appellants, however, challenged the order of conviction and sentence of the lower Court that there are material contradictions in the evidence of the witnesses and the prosecution has not been able to prove the charges beyond reasonable doubt. 8. However, taking into consideration the evidence in the light of submissions. Ten persons examined in this case out of which only P.Ws. 3, 6 and 8 are material witnesses regarding the identification of the appellants and the occurrence. 9. The prosecution case, as alleged in the fardbeyan originally mentions about only five accused persons, including the wife of Bhekhraj Sharma. However, P.W. 8 has stated that accused persons came in the mid night and asked to open the door when he did not open, thereafter, they threatened to set on fire then he opened the door and then Bhekhraj Sharma went to the back side of the house and set on fire and the motive for the occurrence is land dispute with regard to purchase of the land from Bhekhraj Sharma. However, P.W. 3 is the wife of the informant has stated that the accused persons came, abused and set on fire and she identified the accused persons in the electric light and she got injured by the fire as well as she also got injured by flame of the fire. She has, further, stated that she and her husband had 5 been slept and had got up and prior to the setting of fire there was verbal altercation between her husband and accused persons for about half an hour and several persons of the village collected, however, except P.Ws. 4 and 8, none has come to support the prosecution case except P.W. 6 though he has stated that his house is at a distance of five steps and claimed to have seen the appellants while they were fleeing away from a distance of 50-60 yards from the back portion in the light of flame of the fire. However, taking into consideration the entire evidence there were only three persons who claimed to have identified and witness the occurrence though P.Ws. 6 and 8 claimed to have identified the appellants in the light of flame of fire, but, P.w. 3 claims to identify the appellants in the electric light whereas the informant, P.W. 8, in his evidence in paragraph 8 has stated that at the time of occurrence there was no electric light. P.Ws. 3 and 8 deposed that the accused persons came in the night and knocked the door, they got up and came out, there was verbal altercation for about half an hour and then accused persons set on fire, after coming of the several persons of the village, but, none of the villagers has come to support the prosecution case except P.W. 6. However, P.W. 6, who claims that his house is only at a distance of 5-6 steps did not get up at the time when informant and his wife claimed that there was verbal altercation with the accused persons for half an hour and when the people of the village collected. However, P.W. 6 in his evidence has stated that he got up on hulla, but, does not claim that he seen the appellants who set on fire, but, he claims to have identified them when the appellants were fleeing 6 away at a distance of 50-60 yards and identification is in flame of fire and, hence, his identification in the facts and circumstances from the back from a distance of 50-60 yards does not inspire confidence and the identification by fire and story of verbal altercation and coming of villagers also does not inspire confidence as none of the villagers have come to support prosecution case except P.Ws. 3 and 8, who are husband and wife having prior enmity with the appellants. The investigating officer has also not come to support the prosecution case. The prosecution case, hence, hinges on the evidence of P.Ws. 3 and 8, but, none of the persons have come to support the prosecution case when it is alleged that prior to setting on fire there was verbal altercation for about half an hour and several persons of the village have collected and, hence, under the facts and circumstances the appellants are entitled to be given the benefit of doubt and, hence, the prosecution case has not been able to prove the charges beyond reasonable doubt. 10. The order of conviction and sentence recorded by the lower Court is set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 17th day of August 2011, N.A.F.R., S.A.