JUDGMENT G.F. Couto, J. - The appellant was convicted for an offence punishable under section 436 of Indian Penal Code and subsequently sentenced to undergo 3 years of Rigorous Imprisonment and to pay a fine of Rupees 5,000/-, and in default, to undergo a further imprisonment of 1 year of Rigorous Imprisonment, by Judgment dated 2nd September, 1988, continued on the 6th of the same month. It is against this conviction and sentence that the present appeal was filed. 2. The facts that led to the trial and conviction of the appellant under the said section 436, I.P.C. are that on 23rd April, 1986, at 5.30 p.m., the hut of one Ramchandra Jadhav was destroyed by fire. It is the case of the prosecution that die said Ramchandra Jadhav owns some goats, and on that particular day, the goats of the complainant Jadhav had gone to the field of the appellant and damaged his chillie crop. This was the second time the goats were damaging the crop of the appellant. He, therefore, Went to the house of the complainant and, after asking where the goats had gone, set fire to the hut. 3. The case of the appellant during the trial was one of a complete denial. Therefore, trial was held and the prosecution examined in all six witnesses in order to prove its case. P.W. 6 is the Investigation Officer, P.W. 4 one panch, and the remaining witnesses are the complainant his two daughters and one neighbour who happens to be related to him. The learned Additional Sessions Judge while recording in his Judgment that there were discrepancies in the evidence of the main prosecution witnesses, nonetheless held the view that these discrepancies were minor in nature, and therefore, were not fatal to the prosecution case. He held that the prosecution had succeeded in bringing home the guilt to the accused, and consequently, convicted him. 4. Mr. S.5. Kantak, the learned counsel appearing for the appellant, contended before me that the learned trial Judge had erred in convicting the appellant on basis of the evidence brought on record. He held that the prosecution had succeeded in bringing home the guilt to the accused, and consequently, convicted him. 4. Mr. S.5. Kantak, the learned counsel appearing for the appellant, contended before me that the learned trial Judge had erred in convicting the appellant on basis of the evidence brought on record. He invited my attention to the circumstance that the prosecution witnesses, except for the Investigation Officer and the panch witness, are members of the complainant's family, and therefore, their evidence ought to have been scrutinized with extreme care and only in case the said evidence had stood such scrutiny, a conviction could have been recorded. He urged that a mere reading of the evidence of the main witnesses, namely, of P.W. 2 Deepak, P.W. 3 Raina and P.W. 5 Balwant is enough to show that there are serious discrepancies in their evidence on material points. These discrepancies had not at all been explained satisfactorily by the prosecution and vitiated entirely the prosecution case. In addition, the learned counsel invited my attention to the F.I.R., and in particular, to the version given by the complainant at that time. According to the learned counsel, the complainant started by saying that he was at the Chinchinim Baur, when his daughter Baina came running and told him that "people who had been growing chillie plantation in our neighbourhood bad set our hut on fire". It was much after in the same F.I.R. that he says that he added that "when the house caught fire, many persons had gathered there and afterwards I came to know that the said act of setting fire had been done by one Cyril Dias, resident of Dandewadi Chinchinim". He further stated that "the said incident of setting fire "has been noticed by one Sabadev Chawan and my daughter Deepak Jadbav". Surprisingly, Sahadev Chawan, who according to the complainant was an independent witness, was not at 211 examined by the prosecution and no explanation was given for such omission. All these facts go to show that the case against the appellant is not proved and serious doubts exist about the prosecution case. These doubts ought to have been decided in favour of the appellant. The learned Additional Sessions Judge, however, did not appreciate these aspects and convicted the appellant. 5. All these facts go to show that the case against the appellant is not proved and serious doubts exist about the prosecution case. These doubts ought to have been decided in favour of the appellant. The learned Additional Sessions Judge, however, did not appreciate these aspects and convicted the appellant. 5. As I already mentioned, the prosecution examined, in all, six witnesses to prove its case It is not necessary to go into the evidence of all those witnesses for it is clear that the allegedly eye-witnesses are only three, namely, P.W. 2 Deepak, P.W. 3 Baiua and P.W.5 Balwant. P.W. 1 is the complainant Ram Chandra, which admittedly, was not present at the time of the incident. P.W. 4 is a panch witness and P.W. 6 is the Investigation Officer. I will, therefore, in these circumstances, analyse and discuss the evidence of P.W.2, P.W. 3 and P.W. 5. 6. P.W. 2, Deepak Jadhav, has stated that on 23rd of a month, seven months prior to the date of her description, at about 5.30 p.m., she was grinding chillies when the appellant came there. He told that her family goats have gone into his fields and stated that if the same goats were Dot brought back by her family, he would set fire to her hut. She did not go to bring back the goats, and immediately after the appellant who had a paper under his armpit, took a match box and after sitting it burnt the paper and set fire to the hut with the said paper. She added that the appellant put fire first on the right side of the but in one face of its entrance, then again on the right side, and finally, at the back of the hut. After this, he ran away from the place. The witness brought out of the hut two small children who were inside and shouted for help. People gathered in the place and her sister Baina went to inform the complainant, her father. She stated that she did not remove anything from the hut, be it clothes, Rs. 4,000/-, a cycle and other items. Everything was gutted by fire. In cross-examination, she stated that she had not gone for work on the day of the incident and that she was grinding chillies outside the house when the accused came there and told her "nicely" to remove the goats. 4,000/-, a cycle and other items. Everything was gutted by fire. In cross-examination, she stated that she had not gone for work on the day of the incident and that she was grinding chillies outside the house when the accused came there and told her "nicely" to remove the goats. She denied that after having told to remove the goats, the appellant went away from the hut. 7. Baina Jadhav, P.W. 3, was at the time of her examination only 10 years old and after being interrogated by the learned Judge, her evidence was recorded, although not on oath. She stated that about two years prior to he-r examination in Court, at about 5.00 p.m., her sister Deepak and she were in the hut. The appellant came there and asked them where their goats had gone and she informed the appellant that the goats had gone for grazing. Thereafter, according to the witness, the appellant stated that he would set fire to the hut and removing a match box, took a piece of paper and after burning it, set fire to the hut in three places. Thereafter, on seeing the flames, she started shouting and went to Chinchinim Bazar to call her father. She also said that her sister Deepak remained outside the hut and both of them tried to extinguish the fire, but, at that time, the appellant began to pelt stones on them. Therefore, both Deepak and the witness ran away. In cross, she stated that the appellant set fire, first on the left side of the but, then again, on the left side, and finally, going inside where the utensils were kept. 8. P.W. 5, Balwant Jadhav, stated that his hut is situated at a distance of about 100 metres from the complainant's hut and that in the year 1986, in a month and date he was not remembering, but at about 5.30 p.m., he beard shouts of children that their hut was burning. He went to the hut and saw flames above it. He also saw the appellant with a palm leaf in his hand. The same palm leaf was burning. When he heard the shouts, he was inside his house and he came out and saw that the hut in fire was that of the complainant Ramchandra. He went to the hut and saw flames above it. He also saw the appellant with a palm leaf in his hand. The same palm leaf was burning. When he heard the shouts, he was inside his house and he came out and saw that the hut in fire was that of the complainant Ramchandra. He stated that, thereafter, the complainant came towards his hut, but he begged him not to set fire on it as his wife was sick. During the cross-examination, be said that he did not see who actually set fire to the hut of the complainant, but when he reached there, he saw the appellant with a burning palm leaf in his hand. He further stated that Deepak and Baina told him that the appellant had set fire to the hut with a palm leaf. 9. It is clear from the evidence summarised above, that there are serious discrepancies in the evidence of those witnesses. The learned Additional Sessions Judge held those discrepancies to be merely minor. In my view, it is impossible to agree with the learned Judge and Mr. Kantak is quite right in his submission that the discrepancies are on material points and that such discrepancies cast a serious doubt in the production case. In the first place, it may be mentioned that the description of the incident given by Deepak and by Baina is different. Deepak stated that the appellant had set fire first on the right side of the hut, then again, on the same side, and thereafter, at the back of the hut. Baina, in her turn stated that the appellant set fire on the left side of the hut twice, and thereafter, entering the hut, set fire near the place where the belongings were kept. Then, Deepak stated that she did not, at all make an attempt to extinguish the fire or to bring out their belongings. Baina, however, stated that both of them tried to extinguish the fire, but were prevented from doing it by the appellant, as he began to pelt stones on them and forced them to run away from the place. In addition to these discrepancies, it may be also noted that the version of these two witnesses is in variance with the description of the incident given by Balwant. In addition to these discrepancies, it may be also noted that the version of these two witnesses is in variance with the description of the incident given by Balwant. In fact, Deepak and Baina stated that the appellant set fire to the hut with the help of a paper which he lit with a matcl1 box. Balwant, however, stated that the fire was set to the hut with a palm leaf. There is another discrepancy between Deepak and Baina is that, according to Deepak, the appellant, after setting fire, ran away from the place immediately, whereas Baina stated that the appellant remained in the place and went on pelting stones on Deepak and Baina. 25th November, 1988 10. It may appear that the above discrepancies are minor in nature, and therefore, the learned Additional Sessions Judge was right in discarding them. However, looking to the facts of the case in depth, it becomes manifest and clear that the said discrepancies are in respect of material facts of the case. The charge against the accused is that he set fire to the hut of the complainant with the help of a lit piece of paper and in three different places of the same hut, namely, in front and at the back. The discrepancies mentioned above are in respect of the manner in which the hut was set on fire. It is rather strange that the persons who had witnessed the incident, were giving different versions as regards the manner in which the fire was put to the hut. Minor details are naturally to be different, but not the essential parts of an offence. That apart, it is also symptomatic that the witness Balwant speaks of the fire having been set with the help of a lit palm leaf. Reference to this palm leaf is not found at all in the evidence of Deepak and Baina, and therefore, it would appear that this amounts to a clear improvement made by the said Balwant. A doubt, therefore, arises whether at all the hut was set to fire with the help of a piece of paper or with the palm leaf. The prosecution has not made any effort to set at rest this doubt. It may also mention that the evidence of Balwant is highly suspicious in nature. A doubt, therefore, arises whether at all the hut was set to fire with the help of a piece of paper or with the palm leaf. The prosecution has not made any effort to set at rest this doubt. It may also mention that the evidence of Balwant is highly suspicious in nature. He indeed stated that be was inside his hut, and on hearing the shouts of children, he came out and saw that the hut of the complainant was in fire. He further stated that his hut is at a distance of about 100 metres from the complainant's hut and that there are two other huts in between his hut and the hut of the complainant. He added that after going to the place, he saw the appellant with a palm leaf in fire, in his hands and that, thereafter, the said appellant went towards the hut of the witness in order to set fire to it. The witness further stated that he pleaded with the appellant not to set fire to his hut as his wife was sick and inside it. One fails to understand how and why the appellant would attempt to set fire to the hut of the witness Balwant when nothing has been brought on record to justify such conduct. Balwant had no quarrel at all with the appellant and he had only gone to the place on hearing the shouts for help of the children. This is a statement brought by Balwant in his evidence clearly to prejudice the mind of the Court against the appellant. It is an attempt to show, as rightly pointed out by Mr. Kantak, that the appellant is a maniac and bent for no reason at all, to set fire to the dwelling houses of people. This, obviously, cannot be accepted and, in any event, appears to be the most unnatural conduct on the part of the appellant. The same statement also casts serious doubts about the evidence of the witness Balwant and one does not feel at case to rely in such evidence in order to support the conviction of a person. 11. It is also difficult and unsafe to place reliance in the evidence of Deepak and Baina to support the conviction of the appellant. The same statement also casts serious doubts about the evidence of the witness Balwant and one does not feel at case to rely in such evidence in order to support the conviction of a person. 11. It is also difficult and unsafe to place reliance in the evidence of Deepak and Baina to support the conviction of the appellant. Baina was, at the time of the incident, a small girl, aged 8 years, and while deposing in Court, she had clear improvements and variations in her evidence So far as Deepak is concerned, it is her version of the incident that the appellant came to the place and talked to her "nicely". He asked where her goats were gone, and immediately after, threatened to set fire to the hut of the complainant. This alleged conduct of the appellant is most unnatural. In fact, if the appellant approached Deepak and talked to her in a nice way, one fails to understand why he immediately threatened to set fire to the hut The very fact that the appellant went to talk politely to Deepak indicates that he was not intending any mischievous act. There is another reason to point that the appel1ant had no sufficient and satisfactory reason to set fire to the hut of the appellant only because, as it is the prosecution case, the goats of the complainant had damaged his chillie plantation. In fact, it is the prosecution case itself that, some time prior to the incident, the goats of the complainant had damaged the chillie plantation of the appellant and that, ultimately, the dispute that arose had been settled amicably and the complainant has paid to the--appellant compensation for the damages caused by the goats. Now, if at all a second incident of damage to the crop had taken place, in the background of the earlier payment of compensation, it was only natural that the appellant would expect some compensation to be paid to him for the fresh damage caused to his crop. In this background, it is rather difficult to believe that the appellant would have intended to set fire to the hut only because the goats of the complainant had damages his crop and this even before getting a refusal on the part of the complainant to pay damages, if any, caused to the plantation. In this background, it is rather difficult to believe that the appellant would have intended to set fire to the hut only because the goats of the complainant had damages his crop and this even before getting a refusal on the part of the complainant to pay damages, if any, caused to the plantation. This conduct is, therefore, most unnatural and one cannot accept without serious doubts that on basis of such a trivial incident, any person would set fire to the dwelling place of others. 12. There is another aspect of the case that is most relevant and should be borne in mind. The version given by the prosecution witnesses Deepak and Baina, and to some extent Balwant, is that the appellant had set fire to the hut in three places. Deepak said that with the help of a paper, the appellant act fire twice on the right side of the hut and, then, at the back. Baina said that the appellant set fire twice with the help of a paper on the left side of the hut, and then, going inside, to the place where the belongings of the complainant were kept. In his turn, Balwant said that he saw the appellant with a lit palm leaf. The emphasis in stating that the hut was set on fire in three places indicates that the witnesses wanted to impress on the Court that the appellant had made up his mind to destroy completely the but. But, if this was the intention, one fails to understand how the appellant approached Deepak and talked to her in a nice and polite way. 13. In the F.I.R., the complainant stated that the incident had been witnessed by his daughter Deepak and by one Sahadev Chavvan. Surprisingly, the prosecution did not examine the said Sabadev, nor the Investigation Officer gave any explanation as to why Sahadev was not examined. This circumstance justifies, therefore, an adverse inference to be taken against the prosecution, namely, that if Sahadev had been examined, he would have deposed against the case of the prosecution. Conscious of this serious infirmity in the prosecution case, the learned Public Prosecutor made a valiant effort to justify it. This circumstance justifies, therefore, an adverse inference to be taken against the prosecution, namely, that if Sahadev had been examined, he would have deposed against the case of the prosecution. Conscious of this serious infirmity in the prosecution case, the learned Public Prosecutor made a valiant effort to justify it. He said that Sahadev knew nothing about the case as can be seen from the statement made by the Investigation Officer in Court to the effect that during his investigation, it has transpired that, besides Deepak, Baina and Balwant, there were no other eye-witnesses. Though it is true that the Investigation Officer so deposed, the fact remains that it was paramount for the prosecution to bring on record that the said Sahadev Chavvan was approached, his statement recorded and found that he knew nothing about the incident. This was not at all done. It may also be relevant to note that the Investigation Officer brought, in the course of his evidence another circumstance that goes to show that the witness Balwant bad not come to the Court to tell the truth. As already mentioned, Balwant stated that there are two huts in between his but and the hut of the complainant, which was destroyed by fire. The Investigation Officer, however, stated that there are no huts in between the said hut of the complainant and of toe witness Balwant. 14. It is clear from the above, that the evidence of the prosecution witnesses is full of exaggerations, improvements and discrepancies, which taken as a whole and in the context of the facts, make the prosecution case rather doubtful. It is no doubt true that it is apparent from the cross-examination of Deepak that the appellant has admitted his presence in the scene of the offence although he said that he left the place before the fire. The learned Prosecutor argued that this fact taken together with the evidence of the witnesses Deepak. Baina and Balwant and also with the fact that nobody else was found in the place, fully justifies the findings of the trial Court. No doubt, that the presence of the appellant in the place is sufficient to justify some suspicion, but the fact remains that if at all the appellant has committed the crime, be could have easily denied having gone to the place. No doubt, that the presence of the appellant in the place is sufficient to justify some suspicion, but the fact remains that if at all the appellant has committed the crime, be could have easily denied having gone to the place. The very fact that he confirmed that he went and talked to Deepak as regards the damages caused by his goats to his crop and left the place, goes to show his bona fides. Therefore, the prosecution ought to have proved with reliable and strong evidence that the appellant continued in the place at the time of setting of fire to the hut. The evidence of Balwant, as already seen, is unreliable and it will not be safe to rely in the evidence of Deepak and Baina. 15. The learned Additional Sessions Judge has failed to appreciate the cumulative effect of the whole evidence and, as rightly and forcefully pointed out by Mr. Kantak, he confined himself to look to the details of the evidence in separate and to arrive at the finding that the discrepancies in the evidence of the alleged eye-witnesses were minor. 16. The result, therefore, is that this appeal succeeds and, consequently, the impugned Judgment dated 2nd September, 1988, continued on 6th of the same month, is hereby quashed. The conviction of the appellant under section 436 of the Indian Penal Code and the consequent sentence of 3 years of Rigorous Imprisonment and Rupees 5,000/- fine, and in default a further period of 1 year of Rigorous Imprisonment is, accordingly, set aside. The bail bonds stand cancelled. Appeal allowed.