JUDGMENT 1. - This Jail appeal is directed against the judgment of learned Addl. Session Judge, Nagaur dated 7th July, 1987 whereby the learned lower Court has held accused Jiwanram guilty of the offences under sections 436, 32.5, 447 and 323 IPC and has sentenced him as under : Offence Sentence 1. 436 Two years Simple Imprisonment together with a fine of Its. 200/- and in default to undergo one month's S.1. 2. 325 One year's S I. together with a fine of Rs. 200/- and in default to undergo 1 month's S.I. 3. 447 Two month's S.I. together with a fine of Rs. 50/. and in default to undergo 15 days S.I. 4. 325 Two months S I. together with a fine of Rs. 50/- and in default to undergo 15 days S.l. The substantive sentences shall run concurrently, whereas the fine shall be born separately. 2. The accused has preferred this appeal against that judgment. As nobody came forward to represent the accused, services of Shri S.O. Ojha were provided to him as Amicus curiae. 3. I have heard Mr. Ojha on behalf of the appellant and Mr. S.K. Mathur, P.P. for the State. 4. The facts necessary to be noticed for the disposal of this appeal briefly stated are that Jiwanram is the husband of complainant Mst. Bhanwari. It is alleged that Jiwanram is a drunkard and, here fore, he was told by his wife and mother-in-law to bequeath his property in favour of the minor son Nanuram. He has accordingly executed a gift deed in favour of Nanuram regarding his agricultural fields and other property. The agricultural land standing in the name of Jiwanram was muted in favour of Nanuram through his natural guardian Smt. Bhanwari who happens to be Nanuram's mother and Jiwanram's wife. It is admitted case of the parties that Jiwanram's wife and his mother in law alongwith their family were living in that 'Dhani' on the relevant time, it is alleged that on the night of 19-10.86 at about 12 or I P.M., accused Jiwanram came in the (hunt en state to the 'Dhani'. It is alleged that on earlier date i.e. on 18-.046, he harvested Til-crop and sold it in the market and the proceeds were utilised by him in taking wine. It is alleged that on earlier date i.e. on 18-.046, he harvested Til-crop and sold it in the market and the proceeds were utilised by him in taking wine. At the time of the incident, it is alleged that Jiwanram was trying to burn the 'Dhani' which was resisted by Smt. Bhanwari and her mother whereupon accused gave beating to both of them causing simple and grievous injuries. Then, he collected some grass and lit fire to it and threw it into the 'Dhani' by which the 'Dhar and the 'Chhan' were completely burnt. On hearing the cries of the ladies, Hadmana Ram and Pitha came there. Hadmana Ram has been examined as PW 4 whereas Pitha has been examined as PW 7. Hadn ana has totally turned as hostile whereas Mst. Bhanwari has been examined as PW 5. Smt. Pussi has been examined as PW 6 Injuries have been examined by Dr. Arun Kumar PW I. 5. After usual investigation, the case against the accused was chalk end in the Court of learned MJM I Class, Ladnu, from where it was committed for trial to the Court of learned Addl. Sessions Judge, Nagaur. The learned Judge after holding the trial convicted the accused appellant as aforesaid and hence this appeal. 6. I have heard Mr. S.G. Ojha learned Amicus-curiae and Mr. S.K. Mathur learned P,P. for the State and have also perused the record of the case. Mr. Ojha does not challenge the conviction recorded against the accused appellant. I have also perused the statement of PW 5 Smt. Bhanwari & PW 6 Smt. Pussi who are the eye witnesses of the occurrence and who were injured in the incident. Their injuries have been proved by Dr. Arun Kumar. Both these witnesses have categorically stated that this accused earlier to the incident, harvested Til-crop and utilised this for taking wine. On the relevant date intervening between 19th & 20th Oct., 1986 Jiwanram came in a drunken condition to the 'Dhani'. He has bequeathed his field in favour of his son but it is alleged that be was living in this same Dhahi' alongwith his wife and other members of the family. Under these circumstances, his coming to the 'Dhani' cannot be held to be tress-pass. I feel that accused appellant has wrongly been held guilty of the offence under section 447 IPC. Under these circumstances, his coming to the 'Dhani' cannot be held to be tress-pass. I feel that accused appellant has wrongly been held guilty of the offence under section 447 IPC. After coming to the 'Dhani', he tried to burn the Dhani, this act on his part was resisted by Smt. Bhanwari and her mother. On this, accused gave beating to them and caused five simple injuries with a blunt weapon to Mst. Bhanwari and four injuries to Mst. Pussi, one of which was grievous, causing simple fracture of the lower half portion of left forearm. Injury reports Ex. P 1 and Ex. P 2 as also X-ray plates and X-ray reading plate have been proved by Dr. Arun Kumar which provide ample support to the testimony of the eye witnesses that same occurrence took place in which they were beaten. Both these witnesses have further stated that the accused lit fire to a bundle of grass and then he threw that bundle on the but by which the 'hut' & 'Chhan' were burnt. Their statements are supported to some extent by the testimony of PW 7 Pitha and PW 4 Hadmana Ram. Of-course, PW 4 Hadmana and PW 7 Pitta, the alleged eye witnesses of the occurrence have turned hostile to the prosecution but Pitha PW 7 has stated that on hearing the cries of the ladies, he went there. He found Jiwan am present there and he took him to the village. He alongwith Hadmana PW 4 has admitted that the 'Dhani' in which they were living was burnt but has stated that he does not know whether Jiwanram lit fire to that Dhani' or not. He has however admitted that the eye witnesses told him in the presence of the accused that Jiwan Ram has lit fire to the Dhani' but he claims to personal as to whether the 'Dhani' was burnt by him or not. PW 4 Hadmana has stated that Smt. Bhanwari came to call him & told him that Jiwaaram is beating them. When he went there, Jiwan Ram was present in his field and the 'Dhani' was found burnt. 7. These two eye witnesses i e. Smt. Bhanwari w/o Jiwanram and 1 her mother Smt. Pussi have no apparent cause to falsely implicate liven Ram in such a Criminal case. When he went there, Jiwan Ram was present in his field and the 'Dhani' was found burnt. 7. These two eye witnesses i e. Smt. Bhanwari w/o Jiwanram and 1 her mother Smt. Pussi have no apparent cause to falsely implicate liven Ram in such a Criminal case. Their injuries lend ample support to their I testimony that the accused tried to burn the 'Dhani' and when that attempt I was resisted by them, they were beaten and after over powering them, the accused committed this offence of arson In view of this evidence on record, I am convinced that the learned lower Court was perfectly justified in holding the accused guilty of the offence under section 430 IPC as also of the offence under sections 325 and 323 IPC for causing grievous and simple injuries to Mst. Pussi and simple injuries to Mst. Shanwari. I however disagree with the learned lower Court so far as the conviction of accused under section 447 is concerned. 8. Mr. Ojha appearing for the accused appellant has submitted that the accused is in custody for the past about one year three months and 10 days i.e. he is in custody since 24th of Oct. 1936 and so a lenient view may be taken as so far as sentence is concerned. Mr. Mathur has opposed this submission of Mr. Ojha and has submitted that the accused is a drunkard and he has burnt his own 'Dhani' which he has bequeathed to his son and when his attempt to burn the `Dhani' was resisted by his wife Smt. Bhanwari and his mother-in-law Smt. Pussi, gave beating to both of them and caused grievous and simple injuries to them. He deserves no indulgence from the Court. 9. I have given my most earnest considerations to the rival sub-missions made at the bar. 1 am of the view tug the conviction and sentence recorded against the accused under sections 325 and 323 IPC deserves to be maintained but the sentence recorded under section 436 IPC deserves to be reduced from two years R I. together with a fine of Rs 200/- to 16 months R.I. alongwith a fine of Rs. 100/- and in default to undergo one month's S.1. 10. 100/- and in default to undergo one month's S.1. 10. The result is that I partially accept this appeal, set aside the conviction and sentence of accused appellant recorded under section 447 IPC and he is acquitted of the aforesaid offence by giving him benefit of doubt. The conviction and sentence of accused u/section 325 and 323 IPC recorded by the learned lower court is maintained. However, the sentence of two years R.I. together with a fine of Rs. 200/. awarded to the accused under section 436 IPC is reduced to 18 months R. I. together with a fine of Rs. 100/- and in default to undergo one month's S.I. All the substantive sentence are ordered t run concurrently.Appeal partly accepted. *******