Criminal Appeal (SJ) No. 263 OF 1997 Against the judgment and order dated 19.09.1997 passed by Sri Singheshwar Prasad, 7th Additional Sessions Judge, Rohtas at Sasaram in S.Tr. No. 670/89. ************ 1. Sudershan Tiwary. 2. Satendra Tiwary. 3. Ram Suresh Tiwary. 4. Uma Shankar Tiwary. All are sons of Bhuneshwar Tiwary and all are resident of Bhairaw Thana-Kargahar, District-Rohtas. ……(Appellants) Versus THE STATE OF BIHAR-------(Opposite Party) ************* For the Appellants: Mr. Kanhaiya Pd. Singh, Sr. Adv. : Mr. Jitendra Pd. Singh, Adv. For the State : Mr. C. Jawahar, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Section 436/34 IPC and sentenced to RI for seven years by the 7th Additional Sessions Judge, Rohtas at Sasaram in S.Tr. No. 670/89 by a judgment dated 19.09.1997. 2. The case of the prosecution according to Jaganath Tiwary, P.W. 4 is that on 26.01.1986 at about 11 P.M. he woke up on the barking of dogs and when he flashed his torch he saw some persons were whispering to set fire and run away whereafter appellant No. 3 is said to have set fire on the north east portion of the house of the informant while the appellant No. 4 along with other persons were variously armed with weapons. Initially, First Information Report was instituted in this 2 matter in which the Investigating Officer opined that the occurrence was proved but the appellants were not involved and thereafter a protest petition was filed. In the meanwhile P.W. 4 also filed a complaint at which an inquiry proceeded under Section 202 Cr.P.C. 3. On behalf of the prosecution four witnesses have been examined out of whom P.W. 1 is a formal witness who proved the earlier First Information Report instituted by the informant whereas P.W. 2 is the brother of the informant and P.W. 3 is the nephew of the informant and P.W. 4 is the informant himself. Admittedly there was civil dispute going on between the parties. 4. From the evidence of P.W. 2, I find that he is a hearsay witness. P.W. 3 is a corroborative witness who saw the appellants fleeing away from the place of occurrence when hulla was raised by the informant. P.W. 4 is the informant himself. From the evidence of P.W. 4, I find that he stated that he got up in the night on the barking of dogs and when he came out and flashed a torch in the light of which he identified the appellants. Since the case rests on a complaint evidently the torch has not been brought on record. There is no other evidence with regard to the burning of the house and the only material before the Court is by way of ocular evidence that the appellants had set fire to the 3 house of the informant. It would be unsafe to rely solely on the ocular evidence in absence of any objective corroboration. Further, the story of the informant that he woke up and saw the appellants’ whispering and thereafter setting fire to his house without him protesting also does not appear truthful. Also it is highly unlikely the appellants would participate in an act of arson without concealing their identity. 5. In the result, the appeal is allowed and the judgment dated 19.09.1997 passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in S.Tr. No. 670/89 is, hereby, set aside. The appellants are acquitted of the charge and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 5th July, 2011. NAFR/Vikash/-