Judgment Chandra Mohan Prasad, J. 1. The appeal is against the judgment dated 19-5-1992 of the 1st Additional Session Judge, Begusarai, passed in Sessions Case No. 13 of 1988/6 of 1989, whereby the appellant Dinesh Chaudhary has been convicted under Sections 436,452,380 and 323 read with 34 of the Indian Penal Code and respectively sentenced to undergo R.I. for 10 years. R.I. for 5 years R.I. for 5 years and R.I. for 1 year. Each of the remaining two appellants Ram Nath Chaudhary and Jugal Chaudhary has been convicted u/s. 436 read with sec. 34 and Sec. 380 read with sec. 34 of the Indian Penal Code and respectively sentenced to undergo R.I. for 10 years and R.I. for 5 years. 2. The prosecution case as per the FIR alleged by the informant Joga Devi (P.W. 4) on 20-2-1987 at 2.30 p.m. at Bhagwanpur P.S. is that about two years ago her husband (P.W. 1) had purchased 12 dhurs and 16 dhurkis of land adjacent south of her house from Narain Chaudhary on a consideration of Rs. 2000.00 and thereafter they used to keep their cattle on that land and that one day ago the appellant Dinesh Chaudhary who was a Gotia of Narain Chaudhary had come to her (informants) house and asked to get the land measured and separated from his (appellants) land. After some time it was at about 12 noon that day (20-2-1987) the appellants and one Mahendra Chaudhary (the accused who died during trial) carrying Lathi came to her house, trespassed into the house and abused them. Dinesh Chaudhary assaulted her (informant) with Lathi causing bleeding injury on her head. Mahendra Chaudhary (deceased accused) assaulted her (informants daughter) with legs and fists. Her (informants) son and daughter-in-law fled away in order to save their life and prestige. The informant further alleged that the appellants took away Lota, Thali, glass, one Bicycle and cash of Rs. 100.00 . It is also alleged that the appellant Dinesh Chaudhary and Mahendra Chaudhary (deceased accused) set fire to the thatched roof of her house as a result of which the beds and clothes kept in it was burnt. The informant named the witness Jugal Sharma, Bholu Sharma and Bodhu Sharma, Rameshwar Mistry and Arun Mahto as the eye-witness to the occurrence. It is also alleged that the appellant Dinesh Chaudhary and Mahendra Chaudhary (deceased accused) set fire to the thatched roof of her house as a result of which the beds and clothes kept in it was burnt. The informant named the witness Jugal Sharma, Bholu Sharma and Bodhu Sharma, Rameshwar Mistry and Arun Mahto as the eye-witness to the occurrence. But she also stated that accused persons were very attrocious and dire devil and out of fear the witnesses would not gather courage to depose against them. The informant also stated that her husband was out of the village at the time of occurrence. 3. As many as 7 witnesses were examined by the prosecution. P.W. 1 is Ram Prakash Poddar who is the husband of the informant, P.W. 2, Arjun Poddar is the son of the informant. P.W. 3 is Laxmi Devi who is informants daughter, P.W. 4 is Joga Devi who is the informant herself. P.W. 5 is Mathura Prasad who is formal witness and has proved the sale deeds, exhibits 1 and 1/1 in respect of the land purchased by the informant, P.W. 6 Arun Kumar, a formal witness has proved the writing and signature on the FIR, marked as exhibit 2. P.W. 7 Ranjit Jha is also a formal witness who has proved the survey map relating to the P.O. land. 4. Admittedly P.Ws. 1 and 2, the husband and the son of the informant have not deposed as eye-witness to the occurrence. P.W. 1 deposed that while he was plucking chillis in village Rasulpur his son Ashok Poddar came to him and informed him that the mother and the sister were assaulted and that the house was set on fire by the appellant Mahendra Chaudhary and theft of Lota, Thali, old bicycle and cash of Rs. 100.00 was also committed. He further deposed that adjacent south of his house he had purchased 12 dhurs and 16 dhuris of land from Narain Chaudhary and that due to purchase of land, dispute existed between him and the appellants. In paragraph 10 of his evidence he stated that in the brick built portion of the house, his son and daughter-in-law lives and he himself was living in phoos thetched house which was burnt. In paragraph 10 of his evidence he stated that in the brick built portion of the house, his son and daughter-in-law lives and he himself was living in phoos thetched house which was burnt. But in paragraph 11 of his evidence he was unable to say about the length and breadth of the Jhopari i.e. thatched portion in which he was living. 5. P.W. 2 deposed that on the date of occurrence at about 12 noon while he was going to his father, he had seen the appellants abusing his father and saying that they were going to settle the dispute and if the dispute was not settled, they would set the house on fire. This witness has named the appellants and Mahendra Chaudhary (dead) going at that time. He also deposed that when he came back he saw that the appellants had forcibly entered the house and they had assaulted his sister and mother causing bleeding injury on his mothers head and a bicycle. Lota, glass and cash money Rs. 100.00 was stolen away and that Mahendra Chaudhary sprinkled K. Oil and Dinesh Chaudhary set the house on fire. He deposed that a loss of Rs. 1000.00 occurred due to the occurrence. 6. P.W. 3, Laxmi Devi is the informants daughter. She has deposed that while she along with her mother and Bhabhi was sitting in the Angan of her house, the appellants opened the door by dashing it from outside and they carrying Lathi entered into the house and started abusing them. When she prohibited, she was abused by Mahendra Chaudhary. Mahendra Chaudhary assaulted her when her mother (P.W. 4) came to save her, appellant Dinesh Chaudhary gave two Lathi blows causing bleeding injury on the head of her mother. Dinesh Chaudhary took Dibia and sprinkled K. Oil and then set fire in the phoos house as a result of which it burnt. She further deposed that her parents were living in the phoos house and that her brother and Bhabhi were living in Khapra brick portion of the house. She also deposed that the appellant took away Thali, Lota and cash of Rs. 100.00 from the bed. Due to fire the phoos house along with bed and some chillis kept inside burnt. She further deposed that her parents were living in the phoos house and that her brother and Bhabhi were living in Khapra brick portion of the house. She also deposed that the appellant took away Thali, Lota and cash of Rs. 100.00 from the bed. Due to fire the phoos house along with bed and some chillis kept inside burnt. She also deposed that witnesses Jugal Mistry, Baudhu Mistry, Rameshwar Mistry, Bhullu Mistry and Arun Mahto had witnessed the occurrence but they are not willing to give evidence due to fear of the appellants who say that if they gave evidence against them they would not even let them out of their houses even for attending call of nature. She identified the, appellants. She further deposed that at the time of occurrence, there was land dispute between the informant and the appellant. In paragraph 9 she deposed that she had not fled out of her house due to fear but her Bhabhi had left house out of fear. 7. The informant (P.W. 4) deposed that while she along with her daughter and daughter-in-law was in her Angan, the appellants and Mahendra Chaudhary (deceased accused) trespassing into her house forcibly opened the door and started abusing them in the Angan. When her daughter (P.W. 3) protested the act of abusing, appellant Mahendra Chaudhary (dead) caught her by her hair and assaulted her with fists. She (informant) came to save her daughter but the appellant Dinesh Chaudhary gave two Lathi blows causing bleeding injury on her head. She further deposed that the appellant took away Lota, Thali, Bicycle and cash of Rs. 100.00 and they also set fire to the phoos portion of her house in which she used to reside. She further deposed that in the Phoos house one Dibia and Match was kept on Chulha and appellant Dinesh Chaudhary took Dibia and sprinkled K. Oil from the Dibia and set the Phoos house on fire with the Match as a result of which clothes, bed, cot and Chilli kept in the house burnt and thus a loss of Rs. 1000.00 occurred. In paragraph 2 of her deposition, she has stated that witnesses Jugal Mistry, Baudhu Mistry, Rameshwar Mistry, Bhullu Mistry and Arun Mahto were present at the time of occurrence but they would not depose in the case due to the fear of the appellants. 1000.00 occurred. In paragraph 2 of her deposition, she has stated that witnesses Jugal Mistry, Baudhu Mistry, Rameshwar Mistry, Bhullu Mistry and Arun Mahto were present at the time of occurrence but they would not depose in the case due to the fear of the appellants. She deposed that about three years ago, 12 dhoor and 16 dhoorkis land had been purchased and that there was some defect in the deed, hence the correct deed was prepared later on. The two sale deeds are exhibit Nos. 1 and 1/1. She deposed that one day prior to the occurrence, the accused persons had come to her and claimed that they had got some land in the purchased land on which she had stated that they should call an Amin and get the land measured dividing the cost of measurement equally between them and her and then if the land was found excess, they may take it. She further deposed that at the time of occurrence, her husband was not present in the house and he had gone away to village Rasalpur for weighing chillis. In paragraph 5 of the deposition, she further deposed that in the purchased land was south of her house and phoos Jhopri did not situate in the purchased portion of land but in the ancestral land. 8. Considering the evidence, it is found that P.Ws. 3 and 4, mother and sister of the informant were eye-witness to the occurrence. P.Ws. 1 and 2, the husband and the son of the informant are not an eye-witness but they say that when they came home, they learnt about the occurrence and these two witnesses have stated in detail what they learnt about the occurrence. 9. The Investigating Officer in this case has not been examined by prosecution and no reason has also been explained for the same. The prosecution story is that the appellants Mahendra Chaudhary and Dinesh Chaudhary took Dibia and by sprinkling K. Oil on the Phoos house they set it on fire. In the F.I.R., the informant claims that appellants Dinesh Chaudhary and Mahendra Chaudhary (dead) had set the house on fire but in her evidence at paragraph 1 she stated about only the appellant Dinesh Chaudhary saying that he took Dibia and after sprinkling K. Oil set the thatched house on fire. In the F.I.R., the informant claims that appellants Dinesh Chaudhary and Mahendra Chaudhary (dead) had set the house on fire but in her evidence at paragraph 1 she stated about only the appellant Dinesh Chaudhary saying that he took Dibia and after sprinkling K. Oil set the thatched house on fire. Thus she does not say about Mahendra Chaudhary as the person who had committed arson, as claimed by her in the F.I.R. P.W. 4 who is also an eye-witness does not say about Mahendra Chaudhary setting the house on fire and she claims only Dinesh Chaudhary, as the person who committed arson. Thus there is a contradiction in stating the number of accused who had actually committed arson. Besides this, there is no description of the thatched portion of the house which is said to have been burnt. It is peculiar that when the informants husband (P.W. 1) was questioned at paragraph 11 of his evidence about the length and breadth of the thatched house, he stated that he was unable to say about the length and the breadth of that Phoos house. Besides this, the other infirmity in the case of the prosecution is that the Investigating Officer of the case has not been examined. Due to non-examination of the I. O., any objective evidence showing the occurrence of arson could not be proved in Court. The prosecution claims that in Phoos house, clothes, cot and chillis kept therein had burnt. In a case of arson, objective evidence collected from the place of occurrence is very important piece of evidence to prove the occurrence that in fact arson had taken place. But in the instant case, nothing like any burnt material has been seized or produced before the Court to corroborate the claim of the prosecution and the witnesses who said that the Phoos house was burnt. Besides this, there are other intrinsic infirmities in the evidence of the witnesses in the matter that they are not consistent over the number of culprits who were (sic) set the house on fire and P.W. 1 who is the head of the family is unable to say even about the length and the breadth of Jhopri which is said to have been burnt. 10. Under the circumstances, a reasonable doubt is entertained over the matter that the appellants did actually committed arson as alleged. 10. Under the circumstances, a reasonable doubt is entertained over the matter that the appellants did actually committed arson as alleged. Therefore, I feel that the appellants are entitled to benefit of doubt on this account and, therefore, I give benefit of doubt. The appellant Dinesh Chaudhary is acquitted of the charge u/s. 436 of the Indian Penal Code, 1860 and the two appellants, namely, Ram Nath Chaudhary and Jugal Chaudhary are also acquitted of the charge under Sec. 436 read with sec. 34 of the Indian Penal Code, 1860 and hence they are acquitted of the charge and conviction on this account is set aside. 11. During hearing, learned counsel for the appellants tried to assail the evidence of P.W. 6 who proved the F.I.R. (marked as exhibit 2) in the writing of the Officer-in-charge (O.C.), Khodawanpur Police Station but in his evidence P.W. 6 deposed that the F.I.R. was in the writing of the O. C., Bhagawanpur Police Station. Therefore, the appellants counsel argued that the F.I.R. was not registered at Bhagawanpur P. S. but at Khodawanpur P. S. Admittedly, the case was related to Bhagawanpur P. S. and the F.I.R. was also registered there in the writing of the O. C., Bhagawanpur P. S. It appears that while deposing it was just a slip of tongue or a slip of memory of P.W. 6 who deposed that it was in the writing of the O. C., Khodawanpur. Hence due to this minor defect, no doubt can be raised over the prosecution case that the F.I.R. was not registered at Bhagwanpur P. S. but at Khodawanpur P. S. 12. The appellants counsel also argued that in this case there are only two witnesses i.e. P.Ws. 3 and 4 who are mother and daughter, the members of the family and that no independent witness has been examined. Learned counsel argued that in the F.I.R., five villagers are specifically named as eyewitnesses but none of them was examined by the prosecution. Learned Addl. Public Prosecutor replied that in the very F.I.R. itself, there is an explanation that the accused persons are very attrocious and dare devil and due to their fear, witnesses could not courage to depose against them, P.Ws. Learned Addl. Public Prosecutor replied that in the very F.I.R. itself, there is an explanation that the accused persons are very attrocious and dare devil and due to their fear, witnesses could not courage to depose against them, P.Ws. 3 and 4 have deposed that witnesses have been threatened by the appellants who stated them that if they depose against them, the (appellants) would not even allow them (witnesses) to go out their house for attending even the call of nature. Thus, there is material to show that the appellants had threatened the witnesses and the witnesses were afraid of that and, therefore, they could not come to depose against them (appellants). Under the circumstances, no adverse interference is required to be drawn against the case of the prosecution for non-examination of other witnesses. Now the case has to be decided on the merits of the evidence as adduced by the witnesses examined. 13. P.Ws. 3 and 4 have stated that the accused persons took away Lota, Thali, Bicycle and cash of Rs. 100.00 from the house. P.Ws. 1 and 2 who subsequently learnt about the occurrence from these witnesses. The appellants have been convicted under Secs. 380/34 of the Indian Penal Code, 1860 for committing theft of articles. Learned counsel for the appellants argued that there is nothing specific and none of the witnesses has said as to who of the accused had taken what article. No doubt, there is no such specific evidence as to who of the appellants removed which of the article from the house but when the circumstances of the case is considered, it appears that P.Ws. 3 and 4 who were the only eye-witness had been assaulted by the appellants and during the course of assault, theft was also committed. Therefore, under these circumstances, it is not expected that the witnesses will see with equanimity observing about the details of the commission of theft and say as to which of the accused committed theft of which of the articles. It was only the appellants who had entered into the house and theft of those articles had been committed. Hence, under these circumstances, there is no reason to disbelieve the evidence of the witnesses on the point of commission of theft of the articles and I feel that learned trial Court has rightly convicted the appellants under Secs. It was only the appellants who had entered into the house and theft of those articles had been committed. Hence, under these circumstances, there is no reason to disbelieve the evidence of the witnesses on the point of commission of theft of the articles and I feel that learned trial Court has rightly convicted the appellants under Secs. 380/ 34 of the Indian Penal Code, 1860 However, on the quantum of sentence, I feel that the sentence as passed by the trial Court is excessive. Therefore, each of the three appellants is convicted to undergo R. I. for a period of four months u/s. 380/34 of the Indian Penal Code, 1860 14. The appellant Dinesh Chaudhary has been convicted u/s. 452 of the Indian Penal Code, 1860 There is consistent evidence that he, armed with Lathi had forcibly trespassed into the informants house and had also assaulted the informant and her daughter. Under the circumstances, his conviction u/s. 452 of the Indian Penal Code, 1860 is justified and same is upheld. So far as quantum of sentence is concerned, I feel that under the circumstances of the case, sentence of six months of R. I. will meet the ends of justice. Hence sentence u/s. 452 of the Indian Penal Code, 1860 is reduced to R. I. for six months. 15. The appellant Dinesh Chaudhary has also been convicted u/s. 323 of the Indian Penal Code, 1860 There is consistent evidence that when the informant tried to save her daughter from assault at the hands of the appellant Mahendra Chaudhary (dead), the appellant Dinesh Chaudhary assaulted her (informant) twice with Lathi causing bleeding injury on her head. Thus, the conviction under Section 323 of the Indian Penal Code, 1860 is also justified and the same is upheld. As to the quantum of sentence, I feel that a sentence of three months of R. I. will meet the ends of justice. Under the circumstances, sentence u/s. 323 of the Indian Penal Code, 1860 is reduced to R. I. for a sentence for three months. 16. In the light of the discussion made above, the appeal stands partly allowed with modifications in sentences, as indicated above.