JUDGMENT 1. - This appeal arises out of the judgment of the Sessions Judge, Balotra dated 15-10-71 by which he convicted the appellant Babu under section 436 I. P. C. and sentenced him to rigorous imprisonment for 11 years and to a fine of Rs. 200/- in default whereof to rigorous imprisonment for two months. L have heard arguments and perused the record. 2. The brief facts of the prosecution case were that on the night falling between 6-5-70 and 7-5-70, the Jhupa of Narana resident of Bhoortia was burnt in his absence by accused Chautha and Babu. Witnesses Bhersingh and Majna saw them doing so. The utensils, cot and other articles lying in the Jhupa were also destroyed by fire. It was also alleged that there was some tension between the accused and the complainant for sometime past before the occurrence. The police after investigation submitted a challan against both the accused persons under section 436 I P. C. in the court of Munsiff Magistrate, Barmer, but he committed accused Babu only for trial. The learned Sessions Judge after trial convicted and sentenced Babu as aforesaid. 3. The plea of the accused was that some words were exchanged between him and Narana regarding distribution of water. He was falsely implicated on account of this enmity. As a matter of fact, the Dhani was burnt by Jethmal Singh and few others on Baisakh Sudi 2 in the noon. On the day of occurrence, he was in Barmer. The Jhupa was not used for human-dwelling. 4. In order to prove their case, the prosecution produced two eye witnesses Bher Singh PW 1 and Majna PW 6. Bher Singh PW 1 deposed that on 6-5-70 at 5-30 p. m., he went to the Dhani of Uka a mile away from his house, for having a ring fixed on his PAKHAL'. Majna was also sitting there. After his work was done, he and Majna left for the village. When they were nearing the Dhani of Narana it was 8 p.m. and they noticed somebody lighting fire on the `BAD' of Narana's Dhani. When the flames began to rise, they saw in their light that Babu accused and his father Chautha were there and on seeing them approaching, began to run towards the south. They shouted that the Jhupa had been burnt by Babu and Chautha. When the flames began to rise, they saw in their light that Babu accused and his father Chautha were there and on seeing them approaching, began to run towards the south. They shouted that the Jhupa had been burnt by Babu and Chautha. Kamal and Jethmal Singh and Dedha came over there but were unable to extinguish the fire of the Jhupa which was with all its articles consumed by fire. Narana and his children were not there. Therefore, they related the whole story to Narana's brother Alsa. Majna PW 6 stated that he had gone in the marriage of his niece and had returned to Uka's Dhani a little before sun-set. When he left Uka's Dhani and started for home, Bher Singh met him. When they together reached near the Dhani of Alsa, he saw that Babu and Chautha were present in the Jhupa of Narana. Babu lighted a match stick and set fire Narana's Jhupa to fire. Accused Babu and Chautha then ran away. The people gathered there but were unable to extinguish the fire. 5. Alsa PW 2 is the elder brother of Narana and at the time of occurrence, he was at the `kothri' of Jugirdar Sagat Singh. When he heard the cries and saw the flames of fire in Narana's Jhupa, he went towards it. Other persons were also running there, Bher Singh and Majna told him that Babu and Chautha had set the Dhani to fire. Sada PW 3 supported his version. 6. Narana PW II said that Uka informed him about burning of this Dhani. At the time of the occurrence, he was at the Dhani of Kanji. He was employed at the water `tanka' and some words were exchanged between him on the one hand and Babu and Chautha on the other regarding the distribution of water. Jhupa and the articles which were burnt were worth Rs. 1,000/-. 7. Several contradictions in the statements of Bher Singh PW I, Mai Singh PW 7, Sada PW 3, Majna PW 6, Narana PW 11 and Alsa PW 2 were pointed out to the learned Sessions Judge. Jhupa and the articles which were burnt were worth Rs. 1,000/-. 7. Several contradictions in the statements of Bher Singh PW I, Mai Singh PW 7, Sada PW 3, Majna PW 6, Narana PW 11 and Alsa PW 2 were pointed out to the learned Sessions Judge. But the learned Sessions Judge considered the contradictions not significant enough to discard the evidence of the eye witnesses; The evidence of Bher Singh was assailed on the ground that both Narana and Alsa had been his employees some 20 years ago and thus Bher Singh was an interested witness. This contention was also rejected by the learned Sessions Judge. It was then pointed out to the learned Sessions Judge that the prosecution has not produced the other witnesses out of whom one Fateh Singh was even named in the F. I. R. But the learned trial Judge refused to draw any adverse inference from this fact. 8. The accused has produced about six witnesses. Deepa PW 1 deposed that the Dhani was not used for human-dwelling. The Jhupa was burnt in the noon of Baisakh Sudi 2 by Narana, Punma and Jethmal Singh. Babu had lodged a Complaint regarding the water. Jethmal Singh and others had told him that they burnt the Jhupa in order to falsely implicate Babu. Fateh Singh DW 2 arid Banka DW 6 also gave a similar version. Deeda DW 3 and Uka DW 4 were cited by the prosecution but they appeared on the side of defence. Deeda DW 3 denied that he went to extinguish the fire as alleged by the prosecution. Uka DW 4 stated that Majna did not come to his Dhani, nor did Bher Singh. He did not repair any Pakhal of Bher Singh. He, however stated that it was in the afternoon of Baisakh Sudi 2 that the Jhupa was burnt but the accused were not present. Deeda DW 3 also did not support the prosecution case. DW 5 Bhoora stated that at the time of the occurrence Babu was with him in Barmer. 9. The learned trial Judge disbelieved these witnesses and relying upon the prosecution witnesses he held that Babu kindled the fire. Therefore, he convicted and sentenced the appellant as aforesaid. 10. The learned counsel for the appellant Babu submitted that the F. I. R. Ex. 9. The learned trial Judge disbelieved these witnesses and relying upon the prosecution witnesses he held that Babu kindled the fire. Therefore, he convicted and sentenced the appellant as aforesaid. 10. The learned counsel for the appellant Babu submitted that the F. I. R. Ex. P 4 does not state that it was Babu who set fire to the Jhupa. It, therefore, cannot be ruled out that Babu may be innocent, while his father Chautha may have played the mischief. The trial Court was in error in placing reliance upon the statements of Bher Singh and Majna. Bher Singh has stated that somebody was setting fire to the Jhupa by match stick. They could not have identified the wrong doer as it was dark and it was only when the flames of the fire arose that they could see Chautha and Babu. This evidence shows at best that at the time the Jhupa was burning, the accused was seen there. But it cannot mean that he was the person who lit the match stick. Mere presence of the accused near the Jhupa after it began to burn, cannot be held to prove the offence against the accused beyond any manner of reasonable doubt. Majna PW 6 did claim that he saw accused Babu lighting the fire but this piece of evidence should not have been relied upon because if Bher Singh could not notice him doing so, it being dark, how could Majna ? It appears clearly that Majna has improved upon the case. They were mere chance witnesses and even their presence at the relevant time is highly doubtful. Uka DW 4 has denied that Majna and Bher Singh had come to him and has left his Dhani just before the occurrence. The trial court has admitted that there were contradictions in their statements but they were rejected as minor. If these contradictions are considered in the light of what has been said above their evidence cannot be considered reliable. 11. The learned counsel then pointed out another circumstance which went against the prosecution. The incident took place on 6-5-70 at 6-30 p. m. but the F.I.R. was lodged at 4 p.m. on 7-5-70. This delay has not been explained. 12. I have considered over all these points. 11. The learned counsel then pointed out another circumstance which went against the prosecution. The incident took place on 6-5-70 at 6-30 p. m. but the F.I.R. was lodged at 4 p.m. on 7-5-70. This delay has not been explained. 12. I have considered over all these points. It appears to me that their being no satisfactory explanation for the delay in making the report there were chances of concoction and embellishment in the prosecution story. Initially both Babu and his father were implicated but then, later on the case was centred round Babu. There are significant and material contradictions between the two eye witnesses Bher Singh and Majna. Majna Claims that he saw Babu lighting the fire, while Bher Singh does not make such a Claim. It appears to me that both the witnesses have considered that Babu and Chautha should have set the `BAD' to fire because soon after the flames were rising, they saw both of them running away from that place. This itself cannot be considered sufficient to bring the guilt home to the accused. I, therefore, find considerable force in the arguments which were put forward on behalf of the appellants. He is entitled to the benefit of doubt. 13. Consequently, I accept this appeal, set aside the conviction and sentence of the appellant. The appellant is on bail and need not surrender. *******