JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Additional Sessions Judge, Jodhpur dated 23-12-1975 by which the appellants Mst. Kakoo and Bhuriya were convicted for the offence under section 436 Indian Penal Code and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/- each in default to further undergo rigorous imprisonment for one month each. 2. Briefly stated the facts of the case giving rise to this appeal are that there was some hot altercation between the appellant Bhuriya, and his neighbour Jhumar which resulted into the setting of fire by the appellants Bhuriya and his mother. Mst. Kakoo to the 'Jhumpa' on 16th February, 1973 at about 10.00 P.M. at village Ghantiyala. At the neighbours raising a cry the inmates of the house of Jhumar got up and were taken out of the house. Heersingh. Sarpanch of village Panchayat Popa sent a written report through Babulal (PW 1) to the Additional Superintendent of Police (Rural), Jodhpur on 18-2-1972. A case was registered and investigation proceeded. After completion of investigation charge-sheet against the two appellants was filed in the Court of Munsif and Judicial Magistrate, Jodhpur. The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions, committed the appellants to the Court of Sessions to face their trial. The case on transfer reached the court of Additional Sessions Judge, Jodhpur who tried the appellants for the charge under section 436 Indian Penal Code. 3. Learned Additional Sessions Judge placed reliance on the prosecution evidence and held the two appellants guilty for the aforesaid offence and passed the judgment of conviction under appeal. 4. Learned counsel for the appellants has strenuously contended that there is not an iota of evidence to connect the appellants with the commission of the crime. It has been urged by him that as Moolaram (PW 10) the nearest neighbour of Jhumar who is said to have reached the site first of all has not stated the two appellants being there, the testimony of witnesses Motisihgh (PW 4) and Bhenwarsingh (PW5) is not worth reliance. 5. It has been urged by him that as Moolaram (PW 10) the nearest neighbour of Jhumar who is said to have reached the site first of all has not stated the two appellants being there, the testimony of witnesses Motisihgh (PW 4) and Bhenwarsingh (PW5) is not worth reliance. 5. Controverting these arguments, the learned Public Prosecutor submitted that even if Motisingh's contention about his actually seeing the appellants setting fire to the 'Jhumpa' of Jhumar is not believed, still Bhanwarsingh's contention about the two appellants having been seen running away towards their houses after the 'Jhumpa' caught fire is a strong circumstance to connect the appellants with the commission of the crime. Prosecution has tried to substantiate its case by direct as well circumstantial evidence. The direct evidence is that of Motisingh (PW 4). According to this witness when he and Bhanwarsingh were going towards their Dhanis they saw some light and heard the cry of 'Bale re-Bale re'. When he reached that place he saw the appellants setting fire to the house of Jhuntar. According to the witness Jhunar's children were sleeping inside the house and on their raising a cry they were taken out by the witness and his companion. According to the witness besides himself and Bhanwarsingh none else was present near about at the time they reached there and all others had reached there later on. The witness has specifically stated that the cry of 'Bale re, Bale re' was coming from inside the house of Jhumar and his children who were inside the house were raising the cry. 6. In order to find out whether there is any truth in the statement of this witness about his actually seeing the appellants setting fire to the house of Jhumar. the version of his companion Bhanwarsingh is to be looked into. According to Bhanwarsingh when he and Motisingh were passing the way they saw the 'Bada' of Jhumar burning. They heard the cry also. The cry was raised by Moola Bhambhl who was there. According to the witness when he and Motisingh reached near the house, it had already caught fire. They pushed the doors and took out Jhumar's children. The witness has contradicted Motisingh by stating that the cry heard by him was that of Moola Bhambhi and not that of Jhumar or Jhumar's wife and children. According to the witness when he and Motisingh reached near the house, it had already caught fire. They pushed the doors and took out Jhumar's children. The witness has contradicted Motisingh by stating that the cry heard by him was that of Moola Bhambhi and not that of Jhumar or Jhumar's wife and children. The witness has specifically stated that they had not seen the appellants setting the fire rather had only seen them running away from the site. if two persons were going together and one of them states that he and his companion had not seen the appellants setting the fire of the testimony of others looses its worth. Possibility of one person seeing a particular act and the other missing sight of it cannot be ruled out but in the present case when Motisingh himself has stated that he had seen the house burning when his attention was drawn by the cry raised by the children of Jhumar, there arises no question of the witness actually seeing the appellants setting the fire. Setting fire is not an act requiring much time and if the house was already burning where was the necessity for the two appellants again setting the fire to it. In this connection statements of Moolaram (PW 10) and Mst. Chhoti (PW 7) also deserve consideration. Mst. Chhoti (PW 7) wife of Jhumar who was there inside the house at the time of the incident has clearly stated that it was Moola Bhambhi who had raised a cry and warned them to come out otherwise they would be burnt. According to the witness it was at that time that Bhanwarsingh and Motisingh reached there and the doors were opened and she and other inmates of the house were taken out. According to the witness it was Moola Bhambhi who had taken out her as well as children. If it was so then the statement of Motisingh that he and Bhanwarsingh were the first to reach the site and all others came subsequently stands falsified. Otherwise also it was Moola who in the natural course of event was to be attracted first of all by the light visible on account of the burning of the house and the Bada'. Mst. Chhoti has specifically stated that while she was inside the house she had heard the voice of Moola only and of none else. Otherwise also it was Moola who in the natural course of event was to be attracted first of all by the light visible on account of the burning of the house and the Bada'. Mst. Chhoti has specifically stated that while she was inside the house she had heard the voice of Moola only and of none else. Moolaram is the most important witness of the prosecution. He has stated that half of the fencing of his house had also burnt but he had not seen any body setting the fire. He has also stated that he was the first person to raise a cry about the fire and thereafter the villagers had assembled. The statement of the witness clearly indicates that it was at his raising the cry that Motisingh and Bhanwarsingh and other villagers had reached the site. If this witness could not have seen any body setting the fire from such a close range, where was the occasion for Bhanwarsingh and Motisingh who had heard the cry from a distance of about twenty paundas from the house of Jhumar to see the actual act of setting fire. This being the position, the statement of Motisingh about his actually seeing the appellants setting the fire is not at all worth reliance. For the same reason the statement of Bhanwarsingh about his seeing the appellants running away from the site looses its importance. The reason for this conclusion is that Moolaram (P.W.10) who was the first person to come out and had seen his own fencing as well as that of Jhumar burning and had not seen any body running away from there, where was the occasion for Bhanwarsingh seeing the appellants running away from the site. This is pertinent to note that the house of the appellants is only at a distance of four of five paundas from the house of Jhumar and if the fire was already there and Bhanwarsingh and Motisingh had heard the cry from a distance of twenty paundas from the house of Jhumar, there could not have been any occasion for them to come across the appellants running from the site and entering their house and those people enquiring of them as to who had set the fire. Motisingh has professed to have seen the actual occurrence but when his attention was drawn to his statement Ex.D.2 where at portion 'C to D' he has stated that they had restrained the appellants and told them that Jhumar's house is burning and inquired whether they were not the person setting the fire. If Motisingh had actually seen the appellants setting the fire there arises no question of his making such inquiry from the appellants. The statement of Bhanwarsingh being checked up from the statement of Moolaram does not 'inspire confidence on the point that the appellants were actually seen running from the site when the cry was raised by Moolaram. Assuming for the sake of argument that the two appellants were seen by Bhanwarsingh and Motisingh entering their house still that alone will not be sufficient to hold them guilty for the crime. The reason is that their houses are nearby. Similarly the version of Motisingh and Bhanwarsingh that they had a talk with the appellants when they were running and entering their house is not worth reliance for the reason that if there would have been any talk between them, it would not have missed the attention of Moolaram. Moolaram does not speak of any body running away from the site prior to Motisingh and Bhanwarsingh reaching there or the latter two persons having any talk with the appellants. From this type of evidence, I am constrained to hold that prosecution case about any body either seeing the appellants actually setting the fire or their running away from there immediately thereafter does not stand substantiated. 7. Yet another circumstance brought on record to establish the guilt of the appellants is the strained relations between them and Jagdish son of Jhumar on account of Jagdish refusing to graze the she-goats of the appellants. It has been stated by Jagdish (P.W.2) that he was grazing his she-goats and the appellants asked him to graze their she-goats also but he refused to do so and on that the appellants had warned him that if he would not do so, they would burn his house. The witnesses who have supported this motive are Mst. Chhoti, mother of Jagdish and Bhanwar Singh. The witnesses who have supported this motive are Mst. Chhoti, mother of Jagdish and Bhanwar Singh. According to Jagdish, it was fifteen days prior to the incident of fire that the appellants had asked him to graze their she-goats and he had narrated this fact to his mother. Mst. Chhoti has stated that on the date of the incident itself, her son had told her that Bhuriya had warned him that in case he would not graze his she-goats, he would burn his house. She has also stated that it was only about Bhuriya appellant that Jagdish had told him and not about Mst. Kakoo. She has no where stated about any such warning fifteen days prior to the incident of fire. Bhanwarsingh has stated that Jhumar' s son and Bhuriya had not altercation. According to the witness Jagiya (Jagdish) has told him that fact one day prior to the night of incident. He has also stated that Jagdish had told him that Shera's son (Bhuriya) had also given a beating to him. The witness further stated that while saying so, Jagdish had told him that the beating had taken place that very day. This contradictory version by Bhanwar Singh and Jagdish creates doubt on the veracity of the testimony of Jagdish. Jagdish had no where stated about any beating given to him by Bhuria either fifteen days prior to the occurrence or on the date of the occurrence itself. From this type of evidence, the prosecution evidence about there being any hot alter. cation between the appellants and Jagdish motivating the latter to commit such a crime also becomes unbelievable. I am, therefore, inclined to hold that the conviction of the appellants based on this type of vague evidence, cannot be said to be justified. 8. Consequently, the appeal is accepted and the conviction and sentences passed against the appellants are set aside. They are on bail and need not surrender. Their bail bonds stand discharged. *******