JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal has been preferred against judgment and order dated 24.8.1981 passed by IInd Additional Sessions Judge, Agra, in Session Trial No. 301 of 1979, whereby the appellant has been convicted under Section 436, I.P.C. and sentenced to five years R.I. and fine of Rs. 2,000/-. In default of payment of fine, further imprisonment is of six months. 2. Incident is alleged to have taken place on 10.2.1978 at 4:00 p.m. First Information Report was lodged by PW-1, Pooran Chandra on 11.2.1978 at 11:00 a.m. at case crime No. 28 of 1978 P.S. Dauki, District Agra. 3. According to narration of First Information Report, house of complainant, Pooran Chandra is adjoining to house of accused Pratap in village Lakhanpura. Certain altercation took place between the two 20-25 days before incident. There were certain exchange of hot words on account of some quarrel between children of the two families. This led to bad blood between elder members of the neighbours. It is further alleged that the accused had extended threat that he will see the complainant in future. 4. On the date and time of occurrence, bundle of haystacks (Karab) were kept on the terrace of the accused as well as complainant. The allegation is that the accused set the Karab on fire by lighting a match stick of the complainant, Pooran Chandra. At the relevant time, first informant as well as his wife were present in their house but fire spread at Chhappar of the complainant, which resulted in burning and destroying household articles worth Rs. 7,000 to Rs. 8,000/-. Witnesses Agan Lal and Bhagwan Das and several other villagers arrived at the scene of occurrence. Fire was extinguished with their help. By that time, a lot of damage was already caused. It is alleged that the accused fled away from the scene of occurrence. 5. Prosecution examined three eye-witnesses including first informant, Pooran Chandra as PW-1, Agan Lal PW-2 and Bhagwan Das PW-3. Netrapal Singh as PW-4 was scribe of chik, Head Moharrir of Police Station Dauki, District Agra and C.P. Singh, Investigating Officer, was examined as P.W.5. Defence examined a child witness aged about 9 years namely Jagdish as DW-1. 6. 5. Prosecution examined three eye-witnesses including first informant, Pooran Chandra as PW-1, Agan Lal PW-2 and Bhagwan Das PW-3. Netrapal Singh as PW-4 was scribe of chik, Head Moharrir of Police Station Dauki, District Agra and C.P. Singh, Investigating Officer, was examined as P.W.5. Defence examined a child witness aged about 9 years namely Jagdish as DW-1. 6. I have heard Sri D.P. Singh, Senior Adovcate, assisted by Sri Siddharth Niranjan, counsel for appellant, Sri A.K. Jain, learned A.G.A. for the State and scrutinized the statement of witnesses and other documentary evidence placed on record. 7. Challenging the judgment of conviction, the first argument of Sri D.P. Singh as well as Siddharth Niranjan is that this is an accidental fire, Karab kept on the terrace of the accused was also burnt. It is further submitted that children were sitting round the fire warming their hand on the terrace as it was winter season. The Karab of the accused had also caught fire. It was a windy afternoon and fire accidentally spread on the terrace of the first informant resulting in burning the haystacks of PW-1 as well and Chhappar of the house and some of the belongings of the complainant. 8. Next argument is that no one had seen the accused lighting Karab with a match stick, on the contrary witnesses have admitted that they did not see the accused Pratrap setting Karab on fire, therefore, prosecution has not been able to establish that it was Pratap who had caused damage. 9. It is also argued that the two eyewitnesses have been examined besides first informant are real brother and his real nephew i.e. very closely related to the complainant. Though name of certain independent witnesses have also been mentioned in the statement of P.W.1 and F.I.R. but none came forward to depose against the accused. 10. Last argument is that child witness Jagdish, who was examined as DW-1 was administered oath only after satisfaction was recorded by Sessions Judge that he appears to understand difference between true and false, therefore, he could be allowed to depose in the witness box. 11. Learned A.G.A. has categorically and emphatically disputed each and every arguments of counsel for appellant. Last argument is that child witness Jagdish, who was examined as DW-1 was administered oath only after satisfaction was recorded by Sessions Judge that he appears to understand difference between true and false, therefore, he could be allowed to depose in the witness box. 11. Learned A.G.A. has categorically and emphatically disputed each and every arguments of counsel for appellant. He has tried to draw my attention to the statement of PW-1 where he has clearly stated that Karab was set on fire by lighting match stick by accused who was seen on the terrace one and half hour before the incident. But there were no children present on the terrace, therefore, the entire suggestion of defence stands falsified. 12. Next argument while placing reliance on sight plan is that a number of articles in the house as well as Karab kept on the terrace were burnt, therefore, it could not be said to be an accidental fire. Last argument is that Jagdish happens to be son of real brother of the accused, therefore, his evidence should not be relied upon. Learned A.G.A. has also stressed that prosecution has been able to establish that occurrence did take place since recovery memo of ashes was prepared from site of occurrence, therefore, factum of house and other articles having burnt cannot be disputed. 13. No doubt, the fact that house of complainant was set on fire resulting in damage of number of household articles is not disputed but after going through statement of three eyewitnesses, it is evident that no one had seen the accused lighting match stick and set Karab on fire. Investigating Officer has also failed to prepare recovery memo of match box or any such article which could be used for setting Karab on fire from the vicinity where occurrence took place. Besides, specific admission by eyewitnesses that they had arrived at 4 the scene of occurrence after the house was on fire. Therefore, I am of the view that prosecution has not been able to prove this fact to the hilt that accused Pratap was responsible for setting Karab on fire. Besides, It has also come in evidence that Karab kept on terrace of the accused was also burnt, therefore, suggestion on behalf of defence that strong wind was blowing, possibility of fire spreading next door could not be ruled out especially where there was only Chhappar. Besides, It has also come in evidence that Karab kept on terrace of the accused was also burnt, therefore, suggestion on behalf of defence that strong wind was blowing, possibility of fire spreading next door could not be ruled out especially where there was only Chhappar. The roof was not Pakka but of dried grass. No doubt, it is only Karab of the accused which was burnt but I cannot lose sight of the fact that he had a Pakka house with a roof, therefore, if nothing was burnt inside house, this alone will not be sufficient to come to a conclusion that the accused had set the house of complainant on fire. I cannot also overlook statement of the child witness, which appears to be quite convincing. Taking into consideration the entire facts and circumstances of the case, I hold that prosecution has not been able to prove the case beyond doubt, therefore, accused/appellant is entitled to be given benefit of doubt. 14. In view of what has been stated above, I am of the view that appeal deserves to be allowed. Conviction and sentence as well as fine are liable to be set at naught. The judgment and order dated 24.8.1981 passed by IInd Additional Sessions Judge, Agra, is quashed. The instant appeal is allowed. Appellant is on bail. He need not surrender. ———