Crl.A. 74/2004 BEFORE THE HON’BLE MR. JUSTICE C.R. SARMA Heard Mr. S.C. Biswas, learned counsel, appearing for the appellant. Also heard Mr. B.S. Sinha, learned Addl. Public Prosecutor, appearing for the State-respond ent. 2. This appeal is directed against the judgment and order, dated 04 .03.2004, passed by the learned Sessions Judge, Sonitpur, Tezpur, in Sessions Ca se No.122/2003. 3. By the impugned judgment and order, the learned Sessions Judge c onvicted the appellant for the offence under Section 436 of the Indian Penal Cod e (hereinafter called IPC ) and sentenced him to suffer rigorous imprisonment f or three years and pay fine of Rs.1,000/-, in default suffer rigorous imprisonme nt for another period of three months. Aggrieved by the said judgment and order of conviction and sente nce, the convicted person, as appellant, has come up with this appeal under Sect ion 374 of the code of Criminal Procedure (hereinafter called Cr.P.C. ). 4. Mr. Biswas, learned counsel, appearing for the appellant, taking this Court through the evidence on record, more particularly, the evidence of P W Nos. 2,3 and 4, has submitted that there is no corroboration in respect of the evidence, given by the daughter and the son of the informant i.e. PWs. 2 and 3 respectively and the independent witness i.e. PW.4. The learned counsel, has fur ther submitted that the prosecution has failed to establish, beyond reasonable d oubt that the appellant had set ablazed the house of the informant. It is submit ted that the conviction of the appellant is not based on sufficient and reliable evidence. Therefore, it is submitted, on behalf of the appellant, that the conv iction and sentence, recorded against the appellant, is liable to be set aside. 5. Mr. B.S. Sinha, learned Addl. Public Prosecutor, appearing for t he State-respondent, supporting the conviction and sentence aforesaid, has submi tted that the PWs.2 and 3 i.e. the daughter and the son of the informant, clearl y stated about the involvement of the appellant and as such the impugned judgmen t and order passed by the learned Sessions Judge does not warrant any interferen ce in appeal. 6. The prosecution case, in brief, may be stated as follows:- On the night of 06.05.2000, at about 8.30 pm, when the informant was inside his dwelling house, his daughter and son i.e. PWs. 2 and 3 respectiv ely, while returning home after attending Bihu function, saw the appellant setti ng fire to the granary of the informant aforesaid. As a result of putting fire, the granary of the informant, wherein paddies and potatoes were stored, was gutt ed. Alarm being raised by the said witnesses, the villagers assembled and inform ed the Fire Brigade as well as the police. After the arrival of the Fire Brigade , the fire was extinguished. On the next day i.e. on 07.05.2000, the informant l odged the FIR with the O/C, Jamuguri Police Station. 7. On receipt of the said FIR, police registered a case, being Jamu guri P.S. Case No.23/2000, under Section 436 IPC and launched investigation into the matter. During the course of investigation, police visited the place of occ urrence, prepared the sketch map of the place of occurrence, seized some half-bu rnt materials and examined the witnesses. 8. At the close of investigation, police submitted charge sheet, ag ainst the appellant, under Sections 436 IPC and forwarded him to the Court to st and trial. 9. The offence being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Sonitmpur, Tezpur, committed the case to the learned Sessions Judge, Sonitpur, Tezpur. Accordingly, the learned Sessions Judge, framed charge against the appellant, under Sections 436 IPC. The charge w as read over and explained to the accused-appellant, to which he pleaded not gui lty and claimed to be tried. 10. In order to prove its case, the prosecution examined as many as five witnesses, including the Investigating Officer. At the close of evidence fo r the prosecution, the accused-appellant was examined under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce any defenc e evidence. 11. The learned Sessions Judge, considering the evidence, on record, found the appellant guilty of the offence under Sections 436 IPC and accordingl y, convicted and sentenced him, as indicated above. Hence, this appeal. 12. In order to appreciate the counter arguments, advanced by the le arned counsel, appearing for the parties and to examine the correctness of the i mpugned judgment and order, I feel it appropriate to, briefly, scan the evidence , on record. 13. Sri Jogen Bora is the informant in this case. In his evidence, g iven as PW.1, he stated that when he was inside his house, his daughter and son i.e. PWs. 2 and 3, who were returning after attending Bihu function, raised alar m, shouting that Gaonburah had set ablazed their house. Thereafter, hearing the said alarm, he came out of the house and noticed that his granary was burning. T his witness stated that his daughter and son aforesaid, had informed him that th e appellant i.e. the Gaonburah had caused the mischief. PW.1 further stated that the neighbouring people had immediately assembled in the place of occurrence, b ut they could not extinguish the fire. The informant, who lodged the FIR with th e police, has exhibited the same as Ext.1 and his signature thereon as Ext.1(1). In the FIR(Ext.1) also he disclosed that he was informed by his said daughter a nd son about the involvement of the appellant. From the above, it appears that PW.1 did not see the appellant putting f ire to his granary. Therefore, his evidence being hearsay evidence, can’t be act ed upon to base the conviction. 14. Smti Karavi Bora, daughter of the informant, deposed as PW.2. In her evidence, Smti Bora stated that, on the fateful night, when she, along with her brother Sri Bhaskar Pratim Bora, had entered their courtyard, after attendi ng Bihu function, saw the appellant running away from their house after putting fire to their granary. She stated that, she and her brother had raised alarm, sh outing that Gaonburah had put fire to their house. According to this witness, im mediately after hearing the alarm, raised by them, her parents, their guests, wh o were present in their house on that night and the villagers assembled there an d tried to extinguish the fire. In her cross-examination, she stated that, she d id not know as to how Gaonburah set fire to their granary, but she saw him runni ng away after putting fire to their granary. This witness again stated that, she saw the appellant running away from the nearby house of Sri Deben Saikia. Admit tedly, the house of Sri Deben Saikia was situated adjacent to the house of PW.2. From the said evidence of PW.2, it appears that, she saw the appellant running away from the house of Sri Deben Saikia. Therefore, it is quite doubtful whether she had seen the appellant running away from their house after setting fire to their granary. This witness denied the suggestion, put to her, that she did not tell the Investigating Officer that the accused had ran away after setting fire to their granary. This contradiction on the part of PW.2 was proved through the evidence of Investigating Officer i.e. PW.5. The Investigating Officer, in his evidence, stated that, PW.2 di d not tell him that the Gaonburah had fled away after setting fire to their hous e. From the above contradiction, it appears that PW.2 did not disclose, before t he Investigating Officer, i.e. at the initial stage of recording her statement, under Section 161 Cr.P.C. that she saw the appellant putting fire to the granary and running away therefrom Therefore, her statement that she had seen the accus ed running away from their house, after setting fire to the granary, appears to be the statement made for the first time before the Court. This conduct, on the part of PW.2, raises doubt about the veracity of her evidence. 15. Sri Bhaskar Pratim Bora, the son of the informant, has been exam ined as PW.3. In tune with the evidence of PW.2, this witness also stated that, when he returned home along with his sister i.e. PW.2, they saw the appellant pu tting fire to their granary. He also stated that, they had raised alarm, shoutin g that their granary was set to fire. According to this witness also their paren ts and the villagers arrived in the place of occurrence and tried to extinguish the fire. 16. Sri Deben Saikia, who deposed as PW.4, being the immediate neigh bour of the informant, is the most vital witness. He appears to be an independen t person. In his evidence, PW.4 stated that, when he came out from his house, he saw that the granary of the informant was burning. According to this witness, s eeing the fire, he had raised alarm and the villagers had assembled there. Suppo rting the evidence of PW.1 i.e. the informant, this witness stated, that paddy a nd potatoes stored inside the granary were gutted by fire. In his cross-examinat ion, this witness stated that he did not know how the fire caught the granary of the informant and that the informant also did not tell him as to how the fire c aught the granary. 17. A careful scrutiny of the evidence of the said witness, reveal t hat, all the said witnesses assembled in the place of occurrence, immediately af ter the incident and they took part in extinguishing the fire. 18. According to PW.1, he was informed by his daughter and son i.e. PWs. 2 and 3 that they saw the appellant, running away from his house, after set ting fire to the granary. Therefore, if the PWs. 1, 2 and 3, who are the members of the same family could know about the involvement of the appellant, they shou ld have, naturally, disclosed the identity of the miscreant to the persons, who assembled in the place of occurrence immediately after the occurrence. None of t he PWs. 1, 2 and 3 had informed the PW.4 about the involvement of the appellant. There is no evidence to show that they had informed the villagers about the inv olvement of the appellant. The fact that the said witnesses did not inform the v illagers, who assembled in the place of occurrence, immediately after the occurr ence, is fortified by the evidence of PW.4, who stated that he was not informed by the informant as to how the fire caught his granary. There is no reason, as t o why they did not disclose the involvement of the appellant, if the PW.2 and PW .3 had seen him committing the mischief. This conduct, on the part of the inform ant as well as the PWs. 2 and 3, does not inspire confidence to believe that the PWs. 2 and 3 had seen the appellant setting fire to the granary of the informan t. Another important aspect of the matter is that, the PW.2, in her cross-e xamination, stated that, she saw the accused i.e. the appellant running away fro m the house of PW.4. If she had seen the appellant running away from the house o f PW.4, her evidence as well as the evidence of PW.3, that they had seen the app ellant setting fire to the granary and running away therefrom can’t be believed. The learned Sessions Judge, while recording the conviction and s entence against the appellant, failed to consider this aspect of the matter. 19. It is settled law that, in a criminal case prosecution is requir ed to prove its case beyond all reasonable doubt. Law is also well settled that, if there exist two probable views i.e. one going in favour of the prosecution a nd the other going in favour of the accused person, benefit should always be giv en to the accused. 20. In view of the above contradictions and discrepancies, it is not safe to conclude that the appellant had set ablazed the granary of the informan t. Therefore, I am inclined to hold that the prosecution failed to establish the charge, brought against the appellant, beyond all reasonable doubt. 21. In view of what has been discussed above, I find sufficient meri t in this appeal, requiring interference with the impugned conviction and senten ce. Accordingly, the appeal is allowed and the impugned conviction and sentence, recorded against the appellant is set aside. 22. Consequently, the appellant is acquitted and set at liberty. His bail bond shall stand discharged. Return the Lower Court Records.