Criminal Appeal (SJ) No.187 of 1997 **** Against the judgment and order, dated 19.07.1997, passed by Sri Akhilesh Chandra, Additional Sessions Judge, I, West Champaran, Bettiah, in S. Tr. No. 314 of 1991/183 of 1995 **** 1. Ran Vijay Singh @ Saheb Singh 2. Chunnu Singh @ Sunil Kumar Singh, sons of Vishwaram Singh 3. Chandrika Sah, son of Kawal Sah, residents of village Bargajana, P.S. Shikarpur, district West Champaran .. Appellants Versus The State Of Bihar .. Respondents **** For the Appellants .. M/SAbhay Kumar Singh-1, Brajesh Kumar, Lakshman Lal Pandey, Dhirendra Kishore Saran & Satyavarat Verma, 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 appellant and the State. 2. The appellant no. 3, Chandrika Sah, has been sentenced to rigorous imprisonment for one year under Sections 436 and 436/109 of the Penal Code, appellant no. 1, Ran Vijay Singh @ Saheb Singh, has been sentenced to undergo rigorous imprisonment for ten years under Sections 436/109 of the Penal Code and both the appellants have been fined of Rs.5,000/- for offence under Section 436 of the Penal Code and in default 2 of payment of fine to undergo rigorous imprisonment for one year and appellant no. 2, Chnnu Singh @ Sunil Kumar Singh, has been sentenced to undergo rigorous imprisonment for three months for offence under Section 323 of the Penal Code and all the sentences have been ordered to run concurrently. 3. The prosecution case as alleged in the fardbeyan that at about 08.00 a.m. on 27.11.1990 accused Ran Vijay Singh @ Saheb Singh started removing cow dung belonging to the informant kept near the road in front of his house and when the informant protested then he started abusing and on further protest he called other three accused persons and assaulted by farsa on the head of the informant and simultaneously Chunnu Singh gave lathi blow on the right thigh, leg and back of the informant and on alarm when father of the informant, Jhagru Sah, came for rescue he was also assaulted by the accused persons. In the meantime, Chandrika Sah put fire on the hut of the informant, which burnt to ashes. The police instituted the case and after investigation submitted charge sheet under Sections 323 and 324 read with Section 34 of the Penal Code. On the submission of the charge sheet a protest petition was filed and the learned Chief Judicial Magistrate took cognizance for offence under Section 436 of the Penal Code and committed the case to the Court of sessions, the trial commenced in the Court of session where the charge framed and trial proceeded. 4. During the trial eight witnesses were examined on behalf of the prosecution apart from the documentary evidence. 5. The defence also adduced documentary evidence, Exhibit ‘A’ fardbeyan, Exhibit ‘B’ first information report, Exhibits ‘C’ and ‘C/1’ injuries report, Exhibit ‘D’ certified copy of the charge sheet. The defence 3 of the accused persons is that they have also filed a counter case and the counter version has been proved and Exhibits ‘C’ and ‘C/1’, the injury report, is in the same transaction. The informant, P.W. 6, himself has admitted the injury on the person of the accused persons in his evidence in paragraph 11 though the certified copy of the injury report, Exhibits ‘C’ and ‘C/1’, which shows that one of the injuries was grievous and the prosecution has given no explanation. 6. It has, further, been contended though there is allegation of setting on fire of the hut, but, the evidence recording the setting on fire is quite fluctuating as P.W. 1 in his evidence has taken no objection that Ran Vijay Sah gave match box to Chandrika Sah for setting on fire and Chandrika Sah set on fire. However, in cross examination this witness has stated that when he reached to the place of occurrence the hut had already been burnt to ashes and Shesh nath Sah, P.W. 4, Hridyalal Sah, P.W. 2 and Motilal Sah, P.W. 3 and other came after the occurrence and these witnesses also did not see that who has set the hut on fire and their examination-in- chief is contradictory. The further evidence of P.W. 3 also suffers from the evidence of P.W. 1. However, P.Ws. 5, 6 and 7 has given a different version and they have stated that the fire set on by Lukari in the hut. The evidence of P.W. 1 is that the fire set on by match box given to Chandrika Sah whereas P.Ws. 6 and 7 says that the fire set on by Chandrika with Lukari and, hence, the prosecution is changing it’s version regarding setting on fire and, hence, the evidence of the prosecution is not reliable regarding the setting of fire. 7. The learned counsel for the State, however, contends that though there are evidence, Exhibits ‘C’ and ‘C/1’, the injury report on the 4 person of the defence and contends that that in view of injury of the appellants may be absolved for offence under Sections 323 and 324 of the Penal Code absolve the appellants, but, Section 436 of the Penal Code s till at stake, hence, the witnesses has supported the prosecution case. 8. The prosecution case is that occurrence took place at 08.00 a.m. the occurrence stared for removing cow dung and then followed with abuse, assault and then setting on fire and witnesses 1, 2, 3 and 4 have come to support. 9. Having regard to the submission there is suspense in the submission made by the learned counsel for the appellants. However, the investigating officer in his evidence has supported the there was remains of the burns, but, having regard to the evidence of P.W. 1 in his examination-in- chief and, further, in his cross examination at paragraph 11 there is contradiction. He claimed to be the eye witness, but, in paragraph 11 he says that the hut has already been brunt to ashes prior to his arrival and P.Ws. 2 and 3 and other witnesses reached after his arrival and, hence, according to P.W. 1 no one witnessed the occurrence of setting the hut on fire. However, P.W. 1 in his examination-in-chief said that the fire was set on by a match box. However, P.Ws. 6 and 7 says a different story of setting on fire by Lukari through straw and a new story has been drawn, hence, the witnesses are at variance for setting on fire and the accused persons claimed that it was the prosecution party himself set on fire and though the witnesses submitted the prosecution case about assault, but, the informant himself in his evidence has stated that Ran Vijay and Chandrika also got injury by lathi, but, he did not say who assaulted him and this 5 coupled with Exhibits ‘C’ and ‘C/1’, the certified copy of the injury report and the injury on the person shown to be grievous in nature, however, trial Court disbelieved this document. However, the defence has proved it’s case beyond reasonable doubt then the benefit of doubt is required to be given to the accused persons. 10. Having regard that the informant himself admitted injury on the person of the accused persons and no explanation has been given how the accused persons received injury in the same transaction and the injury proved Exhibits ‘C’ and ‘C/1’ are grievous and non-examination of the injury on the person of the accused is serious infirmity to doubt the prosecution case about the manner of occurrence and, hence, the appellants are entitled for the benefit of doubt. More over the evidence about setting fire as stated above, suffer from contradiction and variation to be ruled upon. 11. Having regard to the facts and circumstances I find and held that the appellants are entitled for the benefit of doubt and, hence, it is hereby held that the prosecution is unable to prove the charges beyond reasonable doubts, hence, the order of conviction and sentence is here set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 12th day of July, 2011, N.A.F.R., S.A.