Criminal Appeal (SJ) No.254 of 1996 Against the judgment of conviction and order of sentence dated 27.08.1996 passed by Shri Laxman Oraon, learned Sessions Judge, Sitamarhi in Sessions Trial No. 311 of 1990. Dharkhan Das, Son of Tulsi Das, resident of village – Purnahia, Police Station – Sahiyara, District – Sitamarhi. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Prasoon Sinha, Advocate. Mr. Rishi Raj, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and further convicted for the offence under Section 448 and 323 of the Indian Penal Code but no separate sentence has been passed for the offence under Section 448 and 323 of the Indian Penal Code. 3. The prosecution case as alleged in the statement of the informant, Bihari Das is that on 23.10.1988 at 5:00 P.M the accused persons including appellant came and Kapleshwar Das tied with towel 2 the waist of informant and Sakaldeo Das caught hold of his hand and on command of Dharkhan Das the accused persons assaulted the informant and when wife of informant came to his rescue she was also assaulted and it is alleged that the appellant Dharkhan Das set on fire the hut meant for the cattle. It has further been mentioned that several people of the village had seen the occurrence and they had come to the rescue to set off the fire. However, it is stated that the land on which the said hut for the cattle stood, a Basgit Purcha had been issued to the accused persons and so they had with ulterior motive set on fire so that the informant may leave the house. 4. On the fardbeyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions and after commitment the charge was framed under Sections 436, 307, 149 and 448 of the Indian Penal Code and during the trial four witnesses were examined. The defence also adduced one witness and the party adduced documentary evidence as Ext. A and B. Ext. A is Protest-cum- Complaint and Ext. B is Basgit Purcha. The defence of the accused is that land belongs to them and it is the prosecution party who has set on fire. 5. On considering the oral and documentary evidence and submission of the parties the trial court, taking into consideration the 3 evidence of the witnesses P.Ws. 1, 2, 3 and 4 that the witnesses have deposed supporting prosecution case that the villager came at the place of occurrence after the accused persons set on fire. The court below though noticed that dispute between the parties about claiming the land on which hut has been constructed and prosecution claims land as Khatiyani land and defence claim the land on the basis of the Basgit Purcha in the name of Shivdhari Das. However, holds that in the absence of any injury report he is unable to come to a conclusion regarding the injury sustained by the informant and his house and hence acquitted the accused persons under Section 307 of the Indian Penal Code but convicted the accused person under Section 323 of the Indian Penal Code and relying on the evidence of the witnesses convicted the accused person under Section 436 of the Indian Penal Code. 6. Learned counsel for the appellant, however, contended that there is a case and counter case and the appellant is claiming the land and in exercise of their claim he has also produced and proved the Basgit Purcha issued in his name and however, the four witnesses were examined but only two who have come to support are P.W. 1 and P.W. 4 and the wife and other witness. The evidence of wife P.W. 2 and P.W. 3 and other suffer from contradiction with regard to their earlier statement and moreover, the attention has been drawn to the witnesses but the I.O. has not been examined caused prejudice as neither the 4 objective evidence regarding the appellant got the opportunity recorded the contradiction with regard to the part of evidence for which the attention of the witnesses have been drawn and hence the prejudice for the non-examination of the I.O. The doctor has also not been examined itself adverse inference be drawn as the prosecution has not been able to prove the manner. 7. However, four witnesses have been examined in this case and though have supported the prosecution case about the setting on fire by Kapleshwar Das. However, the attention of the witnesses has been drawn to record contradiction but the I.O. has not been examined in this case. However, the accused persons claimed to have been injured by assault and the doctor who examined them has neither been examined nor injury report proved. The witnesses supported the prosecution case about the assault but non-examination of doctor and injury report not being proved, the ocular evidence not supported by medical evidence and further the attention has been drawn to the witness P.W. 1 in para 12, P.W. 2 in para 19, P.W. 3 in para 15 and P.W. 4 in para 12. However, the I.O. has not been examined has caused prejudice in recording the contradiction and about the objective finding at the place of occurrence. However, there is a counter case and the prosecution has proved Basgit Purcha issued in the name and hence is claiming the land. The informant also has admitted the existence of the Basgit 5 Purcha in the First Information Report itself and hence when both parties are claiming over the land and there is a case and counter case, the witnesses examined are related with each other are descendants of common ancestor and accused in other case and no witness in the vicinity has come to support the prosecution case where it has come that the place of occurrence is surrounded by several houses, the appellant under the facts and circumstances is entitled for benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt and hence I give the appellant benefit of doubt. The order of conviction and sentence is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 8th August, 2011. N.A.F.R./Kundan.