Judgment B.N. Katju, J. 1. HANIF has filed this appeal against the judgment of IV Additional Sessions Judge, Gorakhpur dated 31-10-77 passed in Sessions Trial No. 128 of 1976 convicting him under Sections 302 and 436 IPC and sentencing him to life imprisonment and five years rigorous imprisonment respectively. 2. THE case of the prosecution is that Hanif appellant was a member of the party of Siddiq PW 1 which played band in marriages. About a week before the occurrence Siddiq had turned him out from his party as he was quarrelsome. This resulted in enmity between them. On 8-3-75 Siddiq and his party went to play band in the marriage of the son of Ram Narain Singh in village Madarsan in the district of Deoria. Hanif appellant also wanted to be included in the party of Siddiq but he was not taken by Siddiq. On the same day (8-3-75) the appellant went to the house of Siddiq in Amahiya Tola Bhaishia in the district of Deoria and told his wife Smt. Ilaichi PW 3 that he would burn her house. On the same day (8-3-75) at about 10.30 P.M. while Rahmatullah PW 2 the brother of Siddiq PW 1 was talking with his brother Habib in front of his house in which he lived alongwith Siddiq PW 1 the appellant came to the cattleshed of Siddiq PW 1 which was to the south of their house and ignited the thatch to the south of the door of the cattleshed which was towards east and thereafter ran away towards east. THE cattleshed caught fire. Km. Nisa daughter of Siddiq PW 1 who was sleeping inside the cattleshed along with her brother Taufiq deceased aged about ten years managed to come out of the cattleshed but Taufiq deceased and a cow and a buffalo which were tethered in the cattleshed died of burn injuries. The first information report was lodged by Rahmatullah PW 2 at Police Station Jhagaha on 9-3-75 at 0.45 A.M., the distance of the Police Station from the place of occurrence being one mile. 3. THE postmortem examination was concluded by Dr. M. H. Jilani on 10-3-75 at 11.30 A.M. and extensile burns were found on the body of the deceased. 4. ON internal examination the membranes, bronchi and the lungs were found to be congested. In the opinion of Dr. 3. THE postmortem examination was concluded by Dr. M. H. Jilani on 10-3-75 at 11.30 A.M. and extensile burns were found on the body of the deceased. 4. ON internal examination the membranes, bronchi and the lungs were found to be congested. In the opinion of Dr. Jilani the cause of death was shock as a result of burn injuries. The postmortem examination of the cow and the buffalo was also conducted by Dr. N. N. Pandey and in his opinion the cause of their death was also shock as a result of extensive burns. The prosecution examined two eye witnesses, namely, Rahmatullah PW 2 and Smt. Ilaichi PW 3. Ram Autar Singh PW 4 deposed that he saw the appellant running away shortly after the incident. Siddiq PW 1 gave evidence regarding the motive for the appellant to commit the crime. The appellant pleaded not guilty and stated that he was implicated falsely due to enmity. Ramanand Upadhyay DW 1 was examined in defence. 5. THE trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellant and convicted and sentenced him as mentioned earlier. 6. RAHMATULLAH PW 2 narrated the prosecution case as mentioned earlier. His evidence is corroborated by the first information report which was lodged by him promptly and is supported by the medical evidence. He is also a natural witness as he resided in the joint house along with his brothers Siddiq PW 1 and Habib and the cattle-shed which was burnt was at a distance of only about twenty paces from the house. His statement that he and his brother Habib were talking to each other in front of their house when the incident took place at about 10.30 P.M. also appears to be probable as the postmortem examination of Taufiq deceased shows that there was semi-digested food in his stomach which indicates that the incident took place within about two hours after the deceased had eaten his dinner. It is noteworthy that he disclosed the name of the appellant immediately after the incident to the villagers who came to his house and also to Ram Autar Singh PW 4. It is true that he is the uncle of the deceased but this is not sufficient to reject his testimony. It is noteworthy that he disclosed the name of the appellant immediately after the incident to the villagers who came to his house and also to Ram Autar Singh PW 4. It is true that he is the uncle of the deceased but this is not sufficient to reject his testimony. Nothing has been brought out in his cross-examination to shake his credit. In our opinion his evidence is reliable. Smt. Ilaichi PW 3 is the wife of Siddiq PW 1. She corroborated the evidence of Rahmatullah PW 2 regarding the incident. It was stated by her that she was sitting along with her sister-in-law in the outer verandah (osara) of their house at the time of the incident when she heard the alarm raised by her brother-in-law Rahmatullah PW1 2 and her daughter Km. Nisa came out from the cattleshed and the appellant thereafter ran away towards the east. It was also stated by her that the appellant had come to her house on the same day in the afternoon and threatened to set; her house on fire after the return of Siddiq PW 1. She is mentioned as an eye witness in the first information report and her presence at the time of the incident is also natural. Her evidence is also supported by the medical evidence. It is true that she is the mother of the deceased but this is not sufficient to reject her testimony. Nothing has been brought out in her cross-examination to shake her credit. In our opinion her evidence is also reliable, 7. RAM Autar Singh PW 4 deposed that on the night of occurrence he was in his Khalihan which is at a short distance from the cattleshed of Siddiq PW 1 towards south-east and was talking to Toofani. At about 10.30 P.M. he heard the alarm raised by Rahmatullah PW 2 and the women folk of his house that Hanif appellant had set fire to the cattleshed and was running away. He and Toofani ran towards the house of Siddiq PW 1 and saw Hanif appellant running away towards east in the light of the burning cattleshed. At about 10.30 P.M. he heard the alarm raised by Rahmatullah PW 2 and the women folk of his house that Hanif appellant had set fire to the cattleshed and was running away. He and Toofani ran towards the house of Siddiq PW 1 and saw Hanif appellant running away towards east in the light of the burning cattleshed. It is true that it was stated by him before the Investigating Officer that he was sleeping in his Khalihan at the time of the incident and he woke up on hearing the alarm raised by Rahmatullah PW 2 and others but we are, of the opinion that this is of no consequence for even if he was sleeping at the time of incident he would have woken up and run towards the house of Rahmatullah PW 2 and seen the appellant running away. He is a natural witness as his Khalihan is close to the house of Rahmatullah PW 2. It is noteworthy that he had no enmity with the appellant before the occurrence. He is also mentioned in the first information report as a witness. Nothing has; been brought out in his cross- examination to shake his credit. In our opinion his evidence is also reliable. 8. SIDDIQ PW 1 deposed that the appellant was a member of his party which played band during marriages. As he was quarrelsome he turned him out of his party about a week before the occurrence as a result of which he became annoyed. On 8-3-1975 he and the other members of his party went to play band in the marriage of the son of Ram Narain Singh in village Madarsan at a distance of about twenty miles from village: Bhaisia. The appellant wanted to go with him but he did not take him. His evidence also appears to be reliable as nothing has been brought out in his cross-examination to shake his credit. The evidence of Rahmatullah PW 2, Smt. Ilaichi PW 3 and Ram Autar Singh PW 4 thus establishes that the appellant ignited the cattleshed of Siddiq PW 1 which resulted in the death of his minor son Taufiq deceased and also the death of a cow and a buffalo which were tethered inside the cattleshed. 9. The evidence of Rahmatullah PW 2, Smt. Ilaichi PW 3 and Ram Autar Singh PW 4 thus establishes that the appellant ignited the cattleshed of Siddiq PW 1 which resulted in the death of his minor son Taufiq deceased and also the death of a cow and a buffalo which were tethered inside the cattleshed. 9. THE question that, however, requires determination is whether the appellant can be convicted under Section 302 IPC for having caused the death of Taufiq deceased. 10. IT was stated by Siddiq PW 1 that he slept in the cattleshed since a year before the occurrence. IT was stated by Rahmatullah PW 2 that Taufiq deceased and his sister Km. Nisa slept in the cattleshed which was burnt since a year before the occurrence but in his statement recorded by the Investigating Officer under Section 161 Cr. P.C. it was stated by him that the deceased Taufiq and Km. Nisa slept in the cattleshed on the night of occurrence as Siddiq PW 1 was absent. Smt. Ilaichi PW 3 also stilted that Taufiq deceased and Km. Nisa had slept in the cattleshed on the night. of occurrence as Siddiq was absent. In these circumstances there is no evidence to indicate that the appellant knew that the deceased or any other person was sleeping in the cattleshed when he ignited it. There is also no evidence to indicate that he had the intention to commit the murder of the deceased or any other child of Siddiq PW 1. IT appears that he only intended to cause financial loss to Siddiq for having turned him out of the band party by burning his cattleshed. The appellant, therefore, did not intentionally cause the death of Taufiq deceased nor can it be held that he ignited the cattleshed with the knowledge that he is likely to cause the death of Taufiq deceased or any other person or he caused the death of Taufiq deceased by a rash or negligent act. The appellant cannot, therefore, he held guilty either u/Sec. 302 or 304 Part II or 304-A IPC for causing the death of Taufiq deceased. The conviction of the appellant under Section 302 IPC is thus erroneous. The appellant is, however, guilty under Section 436 IPC and the sentence of five years rigorous imprisonment awarded to him thereunder is fully justified. This appeal is accordingly allowed in part. The conviction of the appellant under Section 302 IPC is thus erroneous. The appellant is, however, guilty under Section 436 IPC and the sentence of five years rigorous imprisonment awarded to him thereunder is fully justified. This appeal is accordingly allowed in part. The conviction of the appellant under Section 302 IPC and the sentence of life imprisonment awarded to him thereunder are set aside. His; conviction under Section 436 IPC and the sentence of five years rigorous imprisonment awarded to him thereunder arc upheld. 11. THE appellant is on bail. He shall be taken into custody forthwith to serve out the sentence awarded to him. Appeal partly allowed.