Judgment P.K.Deb, J. 1. This appeal has been preferred by the accused-appellants against the judgment of conviction and order of sentence passed by the 6th Additional and Sessions Judge, Sasaram in Sessions Trial No. 90/83 (73/86), whereby and whereunder, accused-appellant Ghurfekhan Yadav has been convicted under Sections 436/34 of the IPC and also under Section 323, IPC. Accused-appellant Wakil Yadav has been convicted under Section 436, IPC while accused-appellant Sheo Yadav under Section 436, IPC. All the accused-appellants have been sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 200/-each. Ghurfekhan Yadav has been further sentenced under Section 323, IPC for simple imprisonment for ten days. 2. An FIR was lodged by the informant Kanchan Dom on 10.12.1980 at the Police Station to the effect that on 8.12.1980 at about 6 p.m., the accused-persons came armed with lathis. Accused appellant No. 1 Ghurfekhan Yadav assaulted him by lathi and accused-appellant No. 3, Wakil Yadav caused fire to his piggeries. The cause/motive behind the offence was such that in day hours of the date of occurrence, the pigs of the informant had damaged the field of Ghurfekhan Yadav and there was an altercation in the day hours and on that grudge, the occurrence took place in the evening hours. From the side of the defence, there is total denial of the prosecution case. 3. Only four witnesses had been examined for and on behalf of the prosecution in the case, out of whom PW 4 is the informant himself while PW 2 and PW 3 are his daughter and son. PW 1, Baselal Dom appears to be neighbouring witness but, he has not supported the prosecution case and, as such, he had been declared hostile. Although his statement made before the Police under Section 161 of the Code of Criminal Procedure had been brought on the record by way of cross-examination from the side of the prosecution but, these statements have not been proved as the IO has not been examined in the case. In that view of the matter, the fact remains that only independent witness examined in this case had not supported the prosecution case. In the impugned judgment, it appears that the learned Sessions Judge became emotional when he took the caste fiction as prevailing in Bihar to be a factor for arriving at a decision for conviction. In that view of the matter, the fact remains that only independent witness examined in this case had not supported the prosecution case. In the impugned judgment, it appears that the learned Sessions Judge became emotional when he took the caste fiction as prevailing in Bihar to be a factor for arriving at a decision for conviction. The informant parties are down-trodden while the accused-persons are from the other community. The emotional caste feelings had completely engulfed the Sessions Judges judicial mind in deciding the present case. The motive as stated was not found to be convincing because when there was altercation regarding entering of the pigs in the field of the accused-persons and the matter ended there. It was not there in the evidence as to how the petty matter continued till the evening hours. The emotional touch of the learned Sessions Judge becomes more evidenced when it could be found that without any legal evidence on record he had convicted the accused-appellant Nos. 2 and 3 also. Appellant No. 1 has been convicted under Section 323, IPC and also under Section 436, IPC while there was specific case of the prosecution that arson was caused only by the accused-appellant No. 3, Wakil Yadav. Practically against accused-appellant No. 2, Sheo Yadav there is no evidence but, he has also been convicted. From the facts and circumstances, it could be found that due to mischief caused in the field of Ghurfekhan Yadav by the pigs of the informant, there might have been altercation and in that altercation Ghurfekhan Yadav definitely had dealt with a lathi blow on the informant himself. Regarding the charge under Section 436, IPC except the evidence of partisan witnesses there is no other evidence while the independent witness had turned hostile. IO has not been examined and, as such, there is nothing that there was any seizure of ashes from the place of occurrence to prove that there was arson. It was also the case of the informant that some of the calves of the pigs had been burnt due to arson but, no proof of it has been supplied from the side of the informant. Only a vague statement is there that Wakil Yadav caused arson but, there is nothing as how he did so. Thus, the allegation of arson becomes a big interrogatory question. Only a vague statement is there that Wakil Yadav caused arson but, there is nothing as how he did so. Thus, the allegation of arson becomes a big interrogatory question. When the charges under Sections 436/34, IPC could not be proved against any of the accused-persons then the conviction against the accused-persons under that charge becomes wholly illegal and inoperative in the eye of law and the same is fit to be set aside which I do accordingly. Regarding the conviction under Section 323, IPC against the accused-appellant No. 1, Ghurfekhan Yadav, I find that the same has been proved but, regarding sentence, I feel after going through the records that he remained in custody for about a month during the course of trial and as such the sentence imposed under Section 323, IPC has already been undergone by the appellant No. 1. 4. In the result, the appeal is partly allowed. The impugned judgment is hereby set aside, in respect of conviction under Sections 436/34, IPC against all the accused-persons. Accused-appellant Nos. 2 and 3, namely, Sheo Yadav and Wakil Yadav are hereby acquitted and are released of their bail-bonds. Accused appellant No. 1, Ghurfekhan Yadavs conviction under Section 323, IPC is hereby upheld and confirmed but, as he has already served the sentence, he may also be released of his bail-bonds which the appellant has submitted on the basis of the order passed by this Court at the time of the admission of the appeal.