JUDGMENT This appeal is directed against the judgment and order dated 23rd April, 1990 passed by the Addl. Sessions Judge, Jajpur, in S.T. No.179/38 of 1989 wherein he convicted all the accused-appellants for the offence under Sections 323/436 read with Section 149 of I.P.C. and sentenced each of them to undergo R.I. for 6 months on the first count and R.I. for 5 years and to pay a fine of Rs.2000/- and in default to undergo R.I. for a further period of three months on second count. Accused-appellant Hari¬har Mallik further having been separately found guilty under Section 323 of I.P.C. was sentenced to undergo R.I. for six months thereunder. It was ordered that sentences were to run concurrently. Shorn of unnecessary details, the prosecution case is that there was a club after the name Sapteswari in village Vakandari. At the instance of members of the said club, the informant and his family members were being subjected to different kinds of harassment by the villagers. On 9.11.1985 at about 6 A.M. while the informant, P.W.1 was returning with a Bahungi from the house of one Krusna Sahu, accused Alekha Ojha asked him to go to the club house as required by accused Nandu @ Kartika Sahu. Instead of going to the club house, P.W.1 proceeded to his own house stating that he would go there afterwards. In the meantime ac¬cused Harihar Mallik approached P.W.1 to go to the club house. When he replied that he would first go to his house and thereaf¬ter go to the club house, Harihar Mallik assaulted him, for which the Bahungi fell down from his hand. At that moment, the said accused Harihar Malli inflicted three blows with it (Bahungi) on his back and both arms. On seeing accused Arjuna Sahu, Bata Sahu, Raghunath Sahu, Babula Sahu, Nandu @ Kartika Sahu, Purna Behera, Bimba Ojha, Gopinath Sahu, Saparti Behera, Aparti Behera, Bina Ojha, Alekha Ojha, Baidhara Senapati, Samasundar Sahu, Laxman Ghadei and others, all being armed with Lathi running towards him, out of fear P.W.1 rushed to his house and he himself and all his family members concealed themselves in the house and bolted the door from inside. In the meantime accused Nandu @ Kartika Sahu instigated the mob to set fire on the house, so that all inmates would be gutted to ashes. In the meantime accused Nandu @ Kartika Sahu instigated the mob to set fire on the house, so that all inmates would be gutted to ashes. Sometime thereafter, P.W.1 could see the thatch of his house on blaze. So, he alarmed all the inmates of his house and all of them came out of it with much difficulty. When the villagers of the nearby villages came to extinguish the fire, the accused persons prevented them from doing so and in a very short time, the house was reduced to ashes. On the same date, at about 9.00 A.M. P.W.11, the then O.I.C. of Korei Police Station, receiving a wireless message from D.S.P., Jajpur regarding the house burning, rushed to the spot, where at about 8.30 A.M., P.W.1 orally reported the incident before him who reduced the same into writing. P.W.11 read over and explained the contents of the report to P.W.1, who finding the same to be correct, put his LTI thereon. As the report revealed a cognizable case, P.W.11 registered P.S. Case No.103(2)85 and took up inves¬tigation. In course of investigation, he examined the witnesses, seized the incriminating materials, arrested some of the accused persons forwarded them to Court and on 12.11.1985 made over charge of investigation of the case to Basudev Singh (P.W.12), C.I. of Police, Jajpur Road who submitted charge sheet. The case having been committed to the Court of Session was transferred to the Court of Addl. Sessions Judge, Jajpur who framed charge under Sections 147/148/323/436/149 of I.P.C. against all the accused persons and under Section 323 of I.P.C. more, against accused Harihar Mallik. The accused persons denied the charge it was their plea that due to previous enmity, the case was foisted falsely against them. Accordingly they faced the trial. To establish its case, prosecution examined 12 witnesses as against one by the defence. After assessing the evidence on record, the trial Court acquitted all but, the accused-appellants as mentioned earlier. Being aggrieved with the said order of conviction and sentence, the accused-appellants have preferred the present appeal. It is on record that seeing the accused-appellants and others being armed with Lathi, rushing towards the house of P.W.1, P.W.1 himself, his son Sankar (P.W.3) son-in-law Narayan and daughter-in-law Sabi concealed themselves in the house and bolted the door from inside. Being aggrieved with the said order of conviction and sentence, the accused-appellants have preferred the present appeal. It is on record that seeing the accused-appellants and others being armed with Lathi, rushing towards the house of P.W.1, P.W.1 himself, his son Sankar (P.W.3) son-in-law Narayan and daughter-in-law Sabi concealed themselves in the house and bolted the door from inside. In the meantime, they heard accused-appellant Nandu @ Kartika Sahu instigating others to set fire on the house. Sometimes thereafter, P.W.1 saw a portion of the thatch of his house on blaze. He alarmed the other inmates of the house, whereafter all of them came out with much difficulty. There is nothing to show that any of the inmates of the house sustained burn injury. If in fact, while P.W.1 and his relatives were there inside the house and P.W.1 could see a portion of the thatch of it burning and the inmates of the house came out with much difficulty, then there was every possibility that they or at least any one of them would have sustained burn injury. It is also there in the evidence that about 100 to 150 persons had gathered at the spot by the time the house caught fire, but only 24 of them faced the trial. There is no evidence as to who amongst the accused-appellants set fire on the house in question. The evidence of P.W.2 that all the accused persons set fire on the house does not stand to reason. The son-in-law and daughter-in-law of P.W.1 who were said to be inside the house, at the time it was burnt have not been examined. They were the most competent persons to depose regarding the arson. Their non-exami¬nation would have adverse impact on the prosecution case. Furthermore, it transpires from the evidence of P.W.5 that just after the house was reduced into ashes, accused-appellant Nandu arrived there and stated that P.W.1 with malafide intention set fire on his own house to falsely implicate the accused per¬sons in a case of arson. The I.O. did not direct his investiga¬tion in that line. Admittedly, there was previous enmity between the accused-appellants in one hand and P.W.1 and his son (P.W.3) on the other hand. So, the possibility that because of previous enmity P.W.1 set fire on his house and declared that the accused persons set his house on fire can not be ruled out. Admittedly, there was previous enmity between the accused-appellants in one hand and P.W.1 and his son (P.W.3) on the other hand. So, the possibility that because of previous enmity P.W.1 set fire on his house and declared that the accused persons set his house on fire can not be ruled out. Furthermore, the trial Court did not hold the accused-appellants guilty either under Section 147 or 148 of I.P.C. If they were not found guilty under either of these two offences, they cannot be held guilty under Section 436 read with Section 149 of I.P.C. The trial Court did not take all these into consideration and convicted the accused-appellants under Section 436/149 of I.P.C. As regards the charge under Section 323 of I.P.C. against accused-appellant Harihar Mallik, it transpires from the evidence of P.W.1 that while he was coming with a Bahungi towards his house accused-appellant Harihar Mallik inflicted a kick on him, for which the Bahungi fell down. In the meantime the said accused-appellant picked up the Bahungi and gave 3 blows on him with it. P.Ws. 3 and 4 corroborated that part of evidence of P.W.1 in material particulars. If in fact because of previous enmity P.W.1 falsely implicated the said accused-appellant in an accusation of assault, he could have implicated some more others in that accu¬sation, but he had not done so. So, in my considered opinion accused-appellant Harihar Mallik has been rightly convicted for the offence under Section 323 of I.P.C. There is no reliable material to hold that the accused-appellants were members of an unlawful assembly. As stated earlier the trial Court has not held the accused-appellants guilty either under Section 147 or 148 of I.P.C. So no vicarious liability can be fastened under Section 323 of I.P.C. against other accused-appellants by aid of Section 149 I.P.C. Learned counsel for the accused-appellants submits that a petition under Section 320 read with Section 482 of Cr.P.C. supported by an affidavit had been filed showing that the informant and the accused-appellants have amicably settled the dispute between them outside the Court and prayed to compound the offences. The offence under Section 323 of I.P.C. being compound¬able in nature, it is compounded and the accused-appellant Hari¬har Mallik is also acquitted of the charge under Section 323 of I.P.C. In the result, the appeal is allowed and the judgment and order of conviction and sentence as passed by the trial Court are hereby set aside and the accused-appellants are acquitted of the charge. They are discharged of their bail bonds. Appeal allowed.