JUDGMENT 1. - This appeal has been filed against the Judgment of the learned Sessions Judge, Doongarpur dated 29.11.1978 whereby the accused-appellant Nathu has been held guilty of the offence under section 436 IPC and has been sentenced to four years rigorous imprisment together with a fine of Rs. 100/- and in default, to undergo 7 days simple imprisonment. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that on the night intervening between 20th and 21st June, 1978, complainant Harishchandra was sleeping in the Parsal of his house with his brother P.W. 5 Shiva. It is alleged that at about 2.30 AM, he was awakened by the barking of his dog. He awoke his younger brother and his mother and then they followed the dog and went behind their house. There, it is alleged, that they found that accused Nathu was removing the Kalus of the house and was setting fire to it while the accused Haliya was standing below on the ground. On seeing them , the accused-persons ran away from the place of the occurrence. They were chased by Harishchand and Shiva for about 30 feet but they could not catch them. When they came back, they found that their Kotha was burning. They raised hue and cry, on which, the attention of their neighboured was attracted and they came to their house and stated putting off the fire. It is alleged that on account of this fire, the complainants Harish Chandra and Shiva were put to a loss of Rs. 2,000/- . The complainant Harish chandra lodged a report of this incident at P.S. Dhambola on 22.6.1978 at about 2.30 P.M. A case under s. 436 IPC was registered against the accused-persons and after Investigation, the case was challaned in the court of learned Addl. Munsif & Judicial Magistrate, Doongarpur, from where, it was committed to the court of learned Sessions Judge, Doongarpur for trial. After trial, the learned Sessions Judge has convicted and sentenced the accused-appellant Nathu aforesaid. However the accused appellant Haliya was as acquitted. Hence this appeal. 3. I have heard Mr. R.N. Mathur, the learned counsel for the appellant and Mr. R.K. Soni, the learned Public Prosecutor for the State. I have carefully gone through the record of the case. 4. Mr. However the accused appellant Haliya was as acquitted. Hence this appeal. 3. I have heard Mr. R.N. Mathur, the learned counsel for the appellant and Mr. R.K. Soni, the learned Public Prosecutor for the State. I have carefully gone through the record of the case. 4. Mr. R.N. Mathur, the learned counsel appearing for the accused appellant has submitted that he does not dispute this fact that any fire might have broken out in the house of Harishchandra on the aforesaid night intervening between 20th and 21st June, 1978 but his case is that the accusedappellant has been involved in this case on account of an enmity existing between the complainant party and the accused-persons because the accused-persons have been calling P.W. 1 Mst. Leela a vamp. Actually, Harishchandra and Shiva have not been able to identify he accused persons. It was only on account of their suspicion and enmity with the accused-persons that they have involved them in f this incident The report of this incident has been lodged after due deliberation after a delay of about 36 hours and hence, the prosecution story does not inspire confidence. He has, therefore, submitted that the appeal should be accepted and the accused deserves the benefit of doubt. 5. Mr. R.K. Soni, the learned Public Prosecutor for the State has, however, submitted that it is a fully proved case in which three eye witnesses of I the occurrence have categorically stated that they have identified the accused persons at the time when the occurrence took place. He has further submitted that on account of some enmity existing between the parties, no body will fasten the guilt of such nature on his enemy and, therefore, the judgment of the learned lower court deserves to be maintained. 6. I have given my most anxious consideration to the submissions made at the bar and have also carefully gone through the record of the case. I am of the view that the learned lower court has wrongly held the accused-appellant Nathu guilty of the offence under s. 436 IPC. P.W. 1 Mst. Leela, P.W. 4 Harishchandra and P.W. 5 Shiva are the alleged eye witnesses of the occurrence, PW4 Harish chandra has stated that on the day of the occurrence, he woke up hearing the barking of the dog in the mid night. The dog went towards the back I side of the house. He. P.W. 1 Mst. Leela, P.W. 4 Harishchandra and P.W. 5 Shiva are the alleged eye witnesses of the occurrence, PW4 Harish chandra has stated that on the day of the occurrence, he woke up hearing the barking of the dog in the mid night. The dog went towards the back I side of the house. He. therefore, woke up his brother and mother and as soon as they went towards the back of their house, they saw accused Haliya standing on the ground and accused Nathu standing on the top of the back portion of his house removing the kelus of the house. As soon as the accused-persons saw them, accused Nathu jumped from the top of the hutment and he alongwith Hariya ran any from the place of the occurrence. The way in which this occurrence is alleged to have taken place as described by these three alleged eye witnesses, appears to be most unnatural. If the dog has starting barking and then gone behind the house then certainly the accused persons must have felt that m some body will awake up and may come to that place and actually. Harishchandra woke up and further woke up his mother and brother- He must have spoken loudly to wake up his brother and mother, and on hearing such a round voice, nobody will wait for the arrival of the occupiers of the house. Actually, if Nathu was standing on the roof of the house and jumped from there and accused Haliya was standing on the ground as stated by them, Harishchandra and Shiva could have immediately caught hold of them and the dog must have also helped them in catching hold of them This story appears to be unnatural and against the human conduct that they could run away without any one of them being caught by these three witnesses. It is true that some body has set fire to the hutment of the complainant and on account of that fire, the complainant has been put to a loss of about Rs. 2,000/- It has been stated by P.W.7 Nainiya, P.W. 8 Nanu and P.W.1 Rattu that they asked Harishchandra as to who lit fire then Harishchandra stated that Haliya and Nathu call their mother a vamp and, therefore, they must have lit fire. 2,000/- It has been stated by P.W.7 Nainiya, P.W. 8 Nanu and P.W.1 Rattu that they asked Harishchandra as to who lit fire then Harishchandra stated that Haliya and Nathu call their mother a vamp and, therefore, they must have lit fire. Thus, it is clear from the testimony of P.W. 7 Nainiya and P.W. 8 Nanu and P. W. 10 Rattu that Harishchandra and Shiva only suspected the involvement of these accused-persons and actually, they have not seen them and if they have seen them, they would have immediately stated that these accused-persons have lit fire and they were standing in this particular way. Thus, is clear that Harishchandra and Shiva have involved these two accused-persons on account of enmity existing between them. There is a long distance to travel between the fact which may be suspected to be true and the fact which is conclusively proved as true by the prosecution on the basis of clear cogent and reliable evidence, which of course, is missing in this case. If Harishchandra and Shiva have seen these accused-persons lilting fire to their Kotha then there was no reason for them not to report the matter to the police immediately on 21.6.1978 itself. It appears that the report has been lodged on 22.6.1978 after due deliberation after a delay of about 36 hours. The Police Station is at a distance of about 15 kilometers. The matter could very well have been reported to the police soon after the occurrence Thus, it appears that Harishchandra and Shiva have not seen the real culprits and after due deliberation, they built up story that these accused-persons must have caused this incident and, therefore, they must be involved and hence they have set up the story in the manner that they have seen the accused-persons and tried to chase them but they could not catch them. In the facts and circumstances of this case, I am of the view that the prosecution has failed to conclusively prove the guilt of the accused-persons. The accused-persons deserve benefit of doubt and consequently acquittal. 7. In the result, I accept this appeal, set aside the conviction and sentence of accused-appellant Nathu for the offence under s. 436 Cr. P.C. recorded by the learned Sessions Judge, Doongarpur and acquit him of the aforesaid offence. The accused-appellant Nathu is on bail. He need not surrender to his bail bonds.Appeal allowed. 7. In the result, I accept this appeal, set aside the conviction and sentence of accused-appellant Nathu for the offence under s. 436 Cr. P.C. recorded by the learned Sessions Judge, Doongarpur and acquit him of the aforesaid offence. The accused-appellant Nathu is on bail. He need not surrender to his bail bonds.Appeal allowed. *******