JUDGMENT 1. - These two appeals are directed against the judgment dated February 10, 1989, passed by the Additional Sessions Judge No. 2, Udaipur (Camp Salumber), by which the learned trial Court convicted and sentenced to the accused-appellant Dewa for the offence under Section 436 IPC and accused-appellants Virma, Laxman and Sangram for the offence under Section 436/34 IPC. 2. The appellant Dewa was tried by the learned Additional Sessions Judge No. 2, Udaipur (Camp Salumber) for the offences under Sections 436, 342 and 307 IPC while accused-appellants Virma, Laxman and Sangram were tried for the offences under Sections 436/34, 342 and 307 IPC. The learned trial Court, after trial, acquitted all the accused-appellants of the offences under Sections 307 and 342 IPC, but convicted accused Dewa for the offence under Section 436 IPC and accused Virma, Laxman and Sangram for the offence under Section 436 read with Section 34 IPC and sentenced each of them to undergo rigorous imprisonment for a period of two years & with a fine of Rs. 250/- each. Dissatisfied with the judgment dated February 10, 1989, convicting and sentencing the accused, the accused-appellants have preferred these two appeals. S.B. Criminal Appeal No. 60 of 1989 (Virma and others v. The State of Rajasthan) was preferred by the accused through their Advocate while S. B. Criminal (Jail) Appeal No. 304 of 1991 (Laxman v. The State of Rajasthan) was preferred by the accused appellant Laxman through the jail. 3. The case of the prosecution against the accused-appellants is that on January 15, 1986, at about 7.30 p.m., the accused went to the house of Harji in village Bilakhfalla Gorimba and closed the doors of the house by hatching the doors & put the house of Harji to fire. At that time, Harji's wife Hantok, his three sons and brother-in-law Banshi Lal were inside the house. Cattles were, also, inside the house. As the house caught the fire,' Banshilal broke-open the back doors of the house and all the inmates of the house came-out of the house. They, also, tried to save their belongings from the flames of fire. The report of this incident was lodged at Police Station, Rishabdeo on January 16, 1986, at about 6.10 a.m. The prosecution in support of its case, examined seven witnesses. The alleged eye-witnesses, namely, PW 3 Nani and PW 7 Thawra did not support the prosecution case. They, also, tried to save their belongings from the flames of fire. The report of this incident was lodged at Police Station, Rishabdeo on January 16, 1986, at about 6.10 a.m. The prosecution in support of its case, examined seven witnesses. The alleged eye-witnesses, namely, PW 3 Nani and PW 7 Thawra did not support the prosecution case. PW 3 Nani was declared hostile. The remaining three eye-witnesses, who were inside the house at the time when the accused put fire to the house, are PW 2 Banshi Lal, PW 5 Hantok and PW 6 Lalu. PW 1 Harji is the owner of the house who was informed that his house was put to fire and who came to the scene of the occurrence and thereafter lodged the report. PW 4 Narendrapal Singh is the Station House Officer, in whose presence the First Information Report was recorded and who conducted the investigation and presented the challan. The accused, in support of their case, examined DW 1 Harka. The prosecution case, thus, merely rests upon the testimony of the three eye-witnesses, namely, PW 1 Banshilal, PW 5 Hantok and PW 6 Lalu, and the recoveries made. 4. PW 2 Banshilal has stated that last year, in the evening at about 7.00 p.m., he was inside the house of Harji. At that time, accused Virma, Dewa, Sangram and Laxman came there. After coming there, they closed the doors of the house and thereafter Virma asked the other accused to put the house under fire. Thereafter accused Dewa put fire to the heap of grass, which was lying in the compound near the house. The heap of grass was about 10' high. The house, also, caught the fire and thereafter they came out-side the house by breaking-open the doors and he rescued the family members of his sister Hantok and, also, brought-out some goods which did not catch the fire by that time. Thereafter, the matter was reported to his brother-in-law Harji. In the cross-examination, this witness has admitted that there is a dispute regarding the land between Harji and the accused and a quarrel took place about three-four days before this incident. This witness has, also, admitted that there is a way in between the com. pound and the house and the heap of grass was head-high and a person standing behind the heap of grass could not be seen. This witness has, also, admitted that there is a way in between the com. pound and the house and the heap of grass was head-high and a person standing behind the heap of grass could not be seen. He has, also, admitted that the accused put fire to the heap of grass and the house, also, caught the fire. He has specifically stated that he saw the accused-appellant Dewa putting fire to the house. 5. Similar is the statement of PW 5 Hantok and PW 6 Lalu. 6. These three are the eye witnesses of the occurrence and were present in the house. They have specifically seen the accused-persons coming towards the house of Harji, but the specific part has been assigned to accused-appellant Dewa only that he put fire to the heap of grass, due to which the house, also, burnt with the heap of grass. None of the witnesses, namely, PW 2 Banshi Lal, PW 5 Hantok and PW 6 Lalu, has assigned any specific part to the other accused except by saying that they were, also, present there; closed the doors of the house and put them inside the house. Thus, the common intention of these accused-appellants, viz., Virma, Laxman and Sangram, is not proved. Even if we take it to be true that these three accused-appellants came with accused-appellant Dewa, then, also, it cannot be said that they had any common intention to put the house under fire. But so far as accused-appellant Dewa is concerned, all these witnesses have consistently stated that accused-appellant Dewa put the heap of grass to fire, which resulted in the damage to the hut, also. A case under Section . 436 IPC is, therefore, clearly proved so far as accused-appellant Dewa is concerned, but so far as the other three accused-appellants, viz., Virma, Laxman & Sangram, are concerned, they had no common intention to burn the house of Harji and no offence under Section 436 read with Section 34 IPC is, therefore, proved against these three appellants beyond a reasonable manner of doubt. Merely by their presence alongwith the accused-appellant I Dewa, the common intention on their part cannot be gathered unless some overt-act is proved, and, therefore, they deserve acquittal. 7. Now coming to the question of sentence. Merely by their presence alongwith the accused-appellant I Dewa, the common intention on their part cannot be gathered unless some overt-act is proved, and, therefore, they deserve acquittal. 7. Now coming to the question of sentence. The learned counsel for the appellant Dewa submits that the incident relates to the year 1986, and the accused-appellant Dewa has, already served about 187 days of [sentence and, now, he is on bail & as such no useful purpose will be served if the appellant Dewa is again sent to jail. He is the only male and earning member in the family and his family will be ruined and further that he is repenting and ready to compensate the complainant Harji. At the relevant time the accused-appellant Dewa was about 20 years of age and more than six years have elapsed and he has suffered the agony of prosecution and is repenting and ready to compensate the complainant. I, therefore, think it proper to reduce the sentence passed by the learned lower Court from two years' rigorous imprisonment to that already undergone by him, but enhance the amount of fine from Rs, 250/- to Rs. 2000/-. 8. In the result, I allow S.B. Criminal (Jail) Appeal No. 304 of 1991 (Laxman v. State of Rajasthan) ; set-aside the conviction and sentence passed by the Court below and acquit accused-appellant Laxman of the offence under Section 436/34 IPC. Appellant Laxman is in jail and he may be released forthwith if not required in any other case. 9. So far as S B. Criminal Appeal No. 60 of 1989 (Virma and others v. The State of Rajasthan ) is concerned, the appeal of accused-appellant Virma, Laxman and Sangram is allowed. Their conviction and sentence, passed under Section 436/34 IPC are set-aside and they are acquitted of all the charges. Accused Virma and Sangram are on bail and they need not surrender. Their bail bonds are discharged. So far as accused-appellant Laxman is concerned, he is in jail. He may be released forthwith if not required in any other case. 10. So far as accused-appellant Dewa is concerned, his appeal is partly allowed His conviction under Section 436 IPC is maintained, but his sentence is reduced from two years' rigorous imprisonment to that of already undergone by him. However, the amount of fine is enhanced from Rs. 250/- to Rs. 2000/-. 10. So far as accused-appellant Dewa is concerned, his appeal is partly allowed His conviction under Section 436 IPC is maintained, but his sentence is reduced from two years' rigorous imprisonment to that of already undergone by him. However, the amount of fine is enhanced from Rs. 250/- to Rs. 2000/-. The amount of fine, if so deposited, may be given to the complainant Harji. The accused-appellant Dewa is allowed two months' time to deposit the amount of fine.Appeal Partly allowed. *******