JUDGMENT : P.K. Banerji, J. Sk. Reyazul is the sole appellant in Criminal Appeal No. 65 of 1967 and Sk. Manzoor is the sole appellant In the other appeal, namely, Criminal Appeal No. 64 of 1967. They were tried separately in the Court of the Sessions Judge, Champaran at Motihari. The learned Judge has convicted both of them under Section 436 of the Indian Penal Code and each has been sentenced to undergo rigorous imprisonment for two years. The two appeals have been heard together and they will be disposed of by this judgment. 2. It appears that the two appellants were accused in respect of the same offence of arson committed on the same date and at the same time and place of occurrence and both of them were committed to the Court of Session by the same commitment proceeding. At the time of trial, however, as it appears from the order sheet of the trial court dated the 25th November, 1966, Sk. Reyazul (appellant in Criminal Appeal No. 65 of 1967) was present in court but the other accused, namely, Sk. Manzoor (appellant in Criminal Appeal . No. 64 of 1967) was found absent. A few prosecution witnesses were also present. A petition was filed on behalf of Sk. Reyazul to the- effect that Sk. Manzoor had gone to Darbhanga two weeks ago for his medical treatment. The prosecution, therefore, prayed that the trial of Sk. Manzoor should be split up in the circumstances and the prayer was allowed. The hearing of the case against Sk. Reyazul opened on that date and it concluded on the 18th January, 1967. The judgment in the case was reserved till the 30th January, 1967. In the meantime the hearing of the case against Sk. Manzoor, (appellant in Criminal Appeal No. 64 of 1967) was taken up on the 12th December, 1966, and it concluded on the 18th January, 1967. The judgment was reserved till the 30th January, 1967, on which date two separate judgments in the two cases against the appellants were delivered by the learned Sessions Judge. 3. The occurrence of this case took place on the 18th April. 1964, at about 10 P.M. at village Serwa within Ramnagar Police Station, in which it was alleged that a palani of Sk. Md. Hakik, who happened to be the father of the two appellants, was set on fire. 3. The occurrence of this case took place on the 18th April. 1964, at about 10 P.M. at village Serwa within Ramnagar Police Station, in which it was alleged that a palani of Sk. Md. Hakik, who happened to be the father of the two appellants, was set on fire. The palani was in use for keeping articles of the house-hold, besides bhusa for the cattle. The prosecution case is that Sk. Hakik, the first informant in this case, owned and possessed a few bighas of land and he used to live separate from his sons in his own house. Sometime before the occurrence, the informant had distributed major portion of his lands amongst his sons and retained a small portion of the same for his own maintenance and out of which 4 kathas were given in zerpeshgi to one Amin Mian. His sons, namely, Sk. Manzoor, Sk. Reyazul and Sk. Mukhtear became annoyed with him over it and instituted some cases. According to prosecution, in the night of occurrence at about 10 P.M. while the informant was sitting at his darwaja, one Chinta Ahir and the informant's sons Mukhtear, Sk. Reyazul and Sk. Manzoor came there and Chinta Ahir and Sk. Mukhtear began to abuse him and Sk. Manzoor and Sk. Reyazul set fire to the western tatti wall of his house, as a result of which it was wholly burnt. Mukhtear was uprooting the tatti of the house and throwing the same in the fire. The properties, including paddy, rice, and furniture of the value of Rs. 1200/approximately were burnt in the fire. On the next day at about 1 P.M. Sk, Hakik went to the police station and lodged first information report of this case. The police instituted a case, took up investigation and submitted charge-sheet against the two appellants only. 4. The defence of the appellants was that they were falsely implicated in the case and that the cow-shed and not the residential house of the informant somehow caught fire and got burnt. 5. The learned Sessions Judge, however, rejected the defence case and accepting the prosecution case convicted the appellants in the manner noticed earlier. 6. 4. The defence of the appellants was that they were falsely implicated in the case and that the cow-shed and not the residential house of the informant somehow caught fire and got burnt. 5. The learned Sessions Judge, however, rejected the defence case and accepting the prosecution case convicted the appellants in the manner noticed earlier. 6. I must at the very outset make a mention of the fact that the investigating officer of this case was not examined by the prosecution with the result that this court finds difficulty in finding out if the palani or any portion of the residential house was actually burnt by fire on account of arson alleged in the case. The investigating officer could not be examined in either of the two cases because he did not turn up in spite of several opportunities having been given to him. for the purpose and the learned Sessions Judge has only observed in his judgment that lithe evidence of this officer was important from the point of view of the prosecution in order to prove the statements made before him by the witnesses". Some of the witnesses, who were examined to support the prosecution case, did not support the same at the trial and the prosecution was given permission to cross-examine those witnesses under Section 154 of the Evidence Act, (hereinafter to be referred to as 'the Act') besides the non-examination of the investigating officer, the prosecution also suffers from another disadvantage, namely, that the first information report was not brought into evidence but the learned Sessions Judge has used this evidence against the accused in the case; To qaote his words : “….The first information, which is earlier statement on the point, corroborates his statement in the Committing Court. Since he died before the trial, that evidence is admissible during the Sessions trial......" The trial court in my opinion, was wrong in using the first information report as an admissible piece of evidence. The first information report, as noticed above, was lodged on the next day of the occurrence at about 1 P.M. by Sk. Hakik, (father of the appellants) who died during the pendency of these cases. The fardbeyan of Sk. Hakik before the police was neither admissible under Section 32 nor under Section 33 of the Act. The first information report, as noticed above, was lodged on the next day of the occurrence at about 1 P.M. by Sk. Hakik, (father of the appellants) who died during the pendency of these cases. The fardbeyan of Sk. Hakik before the police was neither admissible under Section 32 nor under Section 33 of the Act. Section 32 provides; ‘Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found or who has' become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: The first condition regarding the admissibility of such evidence is the death of the man making the statement and it is not in dispute in the present case that Sk. Hakik is dead, but it has still to be shown that the declaration of the person, who is alleged to have made it, was actually made by him. Since the fardbeyan was in writing it was incumbent upon the prosecution to prove by whom or under whose direction it was written. The investigating officer himself has not been examined in this case and, therefore, the necessary requirements of law were not complied with and as such the first information report in the instant case could not be legally used as a corroboration piece of evidence under Section 32 of the Act as has been wrongly done by the learned Sessions Judge. 7. The first information report could not also be used as a piece of evidence under Section 33 of the Act, which provides : "Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of' the same judicial proceeding; the truth of the facts which it states, when the witness is dead or cannot be found...... “ Provided that the proceeding was between the same parties of their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine ; that the questions in issue were substantially the same in the first as in the second proceeding." Hence, the statement made before a police officer is not an evidence within the meaning of Section 33 of the Act. 8. That prosecution has examined only three witnesses in the case and the evidence of Md. Hakik (father of the appellant) who was examined in the committing court and died thereafter, has been tendered under Section 33 of the Act. The convictions of the appellants have been based on the statements of Sk, Hakik made before the Committing Court and on the evidence of Anwarul Hussain (P. W. 1 in both the Sessions trial against the appellants) and Sk. Muhammad (P.W. 2 in the Sessions trial against appellant Sk, Reyazul and P.W. 3 in the Sessions trial against appellant Sk, Manzoor) recorded by the Committing Court, since both of them turned hostile before the Sessions Court and did not support the prosecution case. The evidence of Sk. Harun (P.W. 3) in the sessions trial against Sk, Reyazul and P.W. 2 in the-sessions trial against Sk. Manzoor) was rejected by the trial court on good grounds which I need not repeat and his evidence has, therefore, to be left out of consideration. The question is whether any reliance can be placed on the statements of P.Ws. Anwarul Hussain and Sk. Muhammad made before the Committing Court. 9. Mr. Gupteshwar Prasad, learned counsel appearing for the appellants, has placed reliance on the case of (I) Sharnappa Mutyappa Halke V. The State of Maharashtra (A.I.R. 1964 Supreme Court 1357) in support of his contention that the statements of P. Ws. Anwarul Hussain and Sk. Muhammad before the Committing Court, in absence of any corroboration from any other evidence should not have been relied upon and no conviction should have been based on such evidence. Their Lordships laid down. "...... Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other word, before one decides to accept the evidence brought in under S. 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. Their Lordships laid down. "...... Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other word, before one decides to accept the evidence brought in under S. 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true... ..." 10. In the instant case, Anwarul Hussain, stated in the trial court that he happened to be the maternal grandson of Sk. Hakik. At that time he was aged 16 years. With respect to the actual occurrence his evidence is that at the time of occurrence he was at Shamsuddin's place, from where he heard hul1a of breaking out of fire. He was at a distance of 2-3 bighas from his Nana's house and when he came to his Nana's place, he found the house on fire and people extinguishing the same. He did not see anyone setting the fire. In the committing court, however, he had stated that on the particular night he was at his Nana's place and Mukhtear and Chinta (nor charge-sheeted in the case) came and began to abuse Sk. Hakik; Reyazul set fire and Manzoor began to put into that fire straw of tatti. It is difficult to place any reliance on either of the two statements of the witness in the two courts. It will be wholly unsafe to act on the testimony of the witness in the court of the committing Magistrate. Similarly, Sk, Muhammad, the only witness on whom reliance bas been placed by the trial court, stated in his evidence before the Sessions Court that two to three houses intervened between his house and of Sk, Hakik and that the house of Sk, Hakik was not visible from his Darwaja. On hulla be came to the 'house of Sk. Hakik on that particular night and saw that the fire had broken out and people bad been extinguishing it. He did not see anyone setting fire. On hulla be came to the 'house of Sk. Hakik on that particular night and saw that the fire had broken out and people bad been extinguishing it. He did not see anyone setting fire. This was contrary to his earlier statement in the committing court where be had stated that from his duar the house of Hakik was visible and from his darwaja he saw Reyazul and Manzoor abusing Hakik and Reyazul set fire to his tatti and Manzoor was throwing some portion of the tatti into it. The witness made two different and conflicting statement on oath in two different courts and it is difficult, in absence of any corroboration, to accept either of the two testimonies and base the conviction of the accused on the evidence of such an unreliable witness. 11. The learned Sessions Judge was conscious of the above discrepancy in the evidence and he writes to say in Paragraph 13 of his judgment: “ I am conscious of the rule of prudence that it is not safe to rely upon the statements of prosecution witnesses in the Committing Court, when they have turned hostile in the Sessions Court unless their statements in the Committing Court receive corroboration. He continues to say, however, that: "In the circumstances of the present case, the witnesses have admitted that a building belonging to the informant was on fire. The fact that a building was set on fire is not in dispute. The witnesses have merely shifted the place of occurrence to the palani. Their evidence before the Committing Court clearly shows that their present statements to this effect are false......" It may be that a building belonging to Sk. Hakik was set on fire on that particular night and it may as well be that it was set on fire by somebody but the fact whether the residential house or the palani was set on fire cannot be definitely ascertained in view of the evidence adduced in the case and the mere fact that a part of the building, which belonged to Sk. Hakik, was set on fire does not necessarily prove that it was set on fire by the appellants or by either of them. The prosecution evidence, therefore, suffers from serious infirmities and deficiencies with the result that the conviction of the two appellants on such evidence cannot be reasonably upheld. 12. Hakik, was set on fire does not necessarily prove that it was set on fire by the appellants or by either of them. The prosecution evidence, therefore, suffers from serious infirmities and deficiencies with the result that the conviction of the two appellants on such evidence cannot be reasonably upheld. 12. For the reasons given above, both the appeals are allowed and the convictions and the sentences passed against the appellants are set aside and they are acquitted. Let the appellants be discharged from their bail bonds. Appeals allowed.