Criminal Appeal (SJ) No.435 of 1998 Against the judgment of conviction dated 14. 12. 1998 and order of conviction dated 15. 12. 1998, passed by Shri Laxman Oraon, Sessions Judge, Sitamarhi, in Sessions Trial No. 81 of 1994. Rambabu Rai, S/o Durgadeni Rai, resident of Village- Raghunathpur, Nanhkan, P.S. Majorganj, District-Sitamarhi. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mrs. Prativa Kumari, Amicus Curiae. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant has been convicted for offence under Section 436 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as alleged that on 13. 12. 1993, at 7.30 P.M. while the informant was sitting at his door near ghura (fire), all accused persons Ram Deni Rai, Ram Babu Rai, Shyambabu Rai, Ganesh Rai, Durga Deni Rai, Vakil Rai and Bhaghya Narain Rai came at the door of the informant and abused and at the command of 2 Ram Deni Rai to fire at him, then co-accused Shyam Babu Rai and Ganesh Rai open fire with their Nalkatua and thereafter, it is alleged that Ram Babu Rai with the help of matches set fire on the western portion of the house and it is alleged that on hulla, villagers came and extinguished the fire. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance taken and case committed to the Court of Sessions and charge framed against accused persons for offence under Section 436 I.P.C. against accused Ram Babu Rai and offence under Section 436/149 I.P.C. against accused Ram Deni Rai, Durga Deni Rai, Bhaghya Narain Rao, Vakil Rai, Ganesh Rai and Shyam Babu Rai. During trial seven witnesses were examined on the behalf of the prosecution including the I.O. Witnesses however come to support the prosecution case about unlawful assembly fired by them. However, no person has been injured. 5. However, P.W. 7 (I.O.) in his evidence found the house built in fuse (straw) which 11 hands in length and 9 hands in breadth and in the in the northern side of 3 the tatti was found to burn and also found to the north of the said P.O. land there is a kola of accused Ram Deni Rai. However, it has come in evidence that both parties are Patidar and standing litigation regarding drain. However, Daroga did not seize any articles in material exhibit at the place of occurrence. 6. The trial court finds that witnesses are relatives and prosecution and defence both are Patidar are claiming the land and accused persons also have constructed a hut on the land and said offence has been committed to put pressure on the informant and they have no intention to kill and hence acquitted the accused persons charged under Section 436/149 I.P.C. and convicted the appellant for offence under Section 436 I.P.C. 7. Learned Amicus Curiae however contends that I.O. in his cross-examination has stated that he did not seize any material exhibit nor he mentioned any sign of burn by setting fire except burnt in tati, but neither the burnt remain nor the size of burnt taken mentioned and there is allegation several persons of unlawful assembly came with fire arms and they even fire, but no one was 4 injured. The trial court, though, acquitted other accused persons but convicted the appellant under Section 436 I.P.C. and hence conviction of the appellant is not sustainable. 8. I perused the evidence of the witnesses and considering the evidence of witnesses, it is apparent from the prosecution case that several persons came with fire arms and even there is allegation of firing and then set on fire the house of the informant made of straw and accused persons even resorted to fire by fire arm and the said appellant set on fire. However, it is strange that house which was built of straw and they tried to set on fire and only portion on tati burnt. However neither the size of burnt portion mentioned nor police seized burnt remain and it is strange that the unlawful assembly could not succeed in setting fire of the hut built of straw and I.O. during investigation did not seize any material about remain of burnt nor mentioned area in which tati was burn or any sign that tatti was burn. The learned trial court also disbelieve the prosecution about implication of other accused persons. 9. Hence having regard to the fact that trial 5 court also disbelieve the prosecution case in its major part and allegation regarding setting of fire but only a portion of tati found burnt, the dimension of which also not mentioned it caste a serious doubt on the prosecution case when house is made of straw which is prove to firing and houses of both parties standing at the P.O. 10. Hence, under the facts and circumstances, the appellant is entitled for benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt. Hence the order of conviction and sentenced recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 29th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)