JUDGMENT Hon’ble Vinod Prasad, J.—Challenge in these two connected appeals by nine appellants is to their convictions and sentences recorded by VIIth Additional Session’s Judge, Etah, in S.T. No. 40 of 1981, State v. Chiranji Lal and others. Appellant Dhyan Singh has been convicted under Section 147, 323/149, 436 I.P.C. while rest of the appellants have been convicted under Section 147, 323, 436/149 I.P.C. For offence under Section 147 I.P.C. all the appellants have been sentenced to undergo eight months R.I., under Sections 323 and/or 323/149 to six months R.I. and under Section 436 and/or 436/149 they have been sentenced to four years R.I. Trial Judge has further ordered that all the sentences of each of the appellants shall run concurrently vide impugned judgment and order dated 30.1.1982. 2. Unfolded prosecution story as was scribed by the informant Chob Singh, P.W.1, in his FIR Exhibit-Ka-1 and later on stated during session’s trial were that informant had taken agricultural land of Mahesh Chandra on lease and had sown in it lentil crop of Ranas Urd. Three or four days prior to the date of the incident, Chiranji Lal, Komal, Amar Singh, Data Ram, Dhyan Singh, Prem Singh, Shiv Raj Singh, Siya Ram and Ramesh Chandra had denuded the said crop. A day prior to the incident, Shyam Singh had a muscle flexing with informant’s brother Rohan Singh because of aforesaid denuding of crop. Motivated by the said scuffle, on 16.10.1979 at 6 a.m., all the above named appellants raided informant Chob Singh’s P.W.1, house and grouched, as to why Shyam Singh was assaulted by Rohan Singh and they will belabour informant’s family. Accused thereafter, vetuparised informant’s family members and assaulted informant and his mother. Ram Das, informant’s father sheltered in his house on which Chiranji Lal appellant asked Data Ram that he(Ram Das) is not coming out and, therefore, his house be set ablaze and on such an exhortation Data Ram took out a match box from the pocket of his Kurta and handed it over to appellant Dhyan Singh, who thereafter ignited informant’s thatch which then was gutted in fire causing informant a loss of Rs. 700-800. This incident was witnessed by informant and his injured mother Smt. Ram Kali P.W.-3 and other co-villagers Narsingh, Saitan Singh, Rajveer, Lalman etc. 3. Informant P.W.1scribed F.I.R. Exhibit Ka-1, measured a distance of 6 km. 700-800. This incident was witnessed by informant and his injured mother Smt. Ram Kali P.W.-3 and other co-villagers Narsingh, Saitan Singh, Rajveer, Lalman etc. 3. Informant P.W.1scribed F.I.R. Exhibit Ka-1, measured a distance of 6 km. to P.S. Amapur, District Etah and got it registered as Crime No. 168-A under Section 147, 323, 436/504 I.P.C. same day at 10:15a.m. against named accused. 4. Investigation into the offence was undertaken by S.I. Ram Prakash Yadav, P.W.4, who conducted the spot inspection, prepared site plan Exhibit Ka-2 and then interrogated and recorded 161 Cr.P.C. statement of injured P.W.3 Smt. Ram Kali. More than a month thereafter, on two dates, 13.12.1979 and 23.12.1979, I.O. interrogated and penned down investigatory statement of Rajveer and concluding investigation, charge-sheeted the accused vide Exhibit-Ka 3. 5. Vth Additional Munsif Magistrate, Etah on the basis of charge-sheet registered Case No. 38 of 1980, State v. Chiranji Lal and eight others and summoned the accused. Findings offence under Section 436 IPC triable by Session’s Court, learned Magistrate, on 23.1.1981, committed the case to the Session’s Court where it was received on 24.1.1981 and was registered and numbered as S.T. No. 40 of 1981, State v. Chiranji Lal and others. Trial was transferred to VIIth Additional Session’s Judge for trial. 6. Trial judge, on 18.11.1981, charged all the appellants under Section 147, 323/149 and 436/149. The aforesaid charges were denied by all the accused persons who claimed to be tried and resultantly, to establish their guilt and bring whom the charges, trial procedure commenced. 7. In its endeavour to prove the charges, prosecution examined, in all, four witnesses out of whom informant P.W.1 Chob Singh, Rajveer Singh P.W.2, and Smt. Ram Kali P.W.3 were fact witnesses. The sole formal witness tendered by the prosecution was investigating officer S.I. Ram Prakash Yadav P.W.4. Perusal of the trial Court record indicates that the accused persons had dispensed with formal proof of the two injury reports of informant P.W.-1 and that of his mother P.W.3 vide Exhibit Ka-5 and Ka-6. It is relevant to note here that Ram Kali P.W.3 was medically examined on 16.10.1979 at 4:30p.m.,whereas informant was examined medically the same day at 4:45p.m both at P.H.C., Amapur, District Etah by Dr. Ashok Kumar and their injury reports noted following facts : Exhibit Ka-5— “Examined Smt. Ram Kali aged, 50 yrs. It is relevant to note here that Ram Kali P.W.3 was medically examined on 16.10.1979 at 4:30p.m.,whereas informant was examined medically the same day at 4:45p.m both at P.H.C., Amapur, District Etah by Dr. Ashok Kumar and their injury reports noted following facts : Exhibit Ka-5— “Examined Smt. Ram Kali aged, 50 yrs. Female w/o Sri Ram Das R/o Been pur Kala P.S. Amanpur Etah (U.P.) Brought by Constable Sri Kallu Khan CP 197 on 16.10.1979 at 4.30 p.m. M.I.Black mole on (R) side of face, 1 cm. Below the lower margin of (R) orbit. Injuries: 1. Lacerated wound, 1½ cm. X ¼ cm. X skin deep, over centre of scalp, 13 cm. Away and above the root of nose. Clotted blood is seen over wound. 2. Lacerated wound ½ cm. x ¼ cm. x skin deep, over left side of nose, clotted blood seen over wound. 3. Diffuse swelling over left side of face, sized 6 cm. x 6 cm., 4 cm. away and above the (L) angle of mouth. Multiple bruise seen over swelling. 4. Diffuse swelling, 2 x 2 cm. over (R) forearm lower 1/3rd, 4 cm. away and above the wrist joint (R). 5. Abrasion, 2 cm. x 1 cm., over (L) leg, 9 cm. below the left patella. All injuries are simple in nature. Injury Nos. 1, 3 and 4 are caused by blunt weapon. Injury No. 2 is caused by snatching some thing she is weary in nose. While the inj. No. 5 is cause by fall. Duration is less than ½ day.” Exhibit Ka-6— “Examined Sri Chob Singh, aged 21 years R/o Been pur Kala P.S. Amapur S/o Ram Das. Brought by Constable Sri Kallubhan CP 197 P.S. Amapur Etah on 16.10.79 at 4-45 p.m. M.I. Black more over (R) side of face, 1 cm. above the angle of mandable (R). Injuries: 1. Diffuse swelling over (R) hand Dorsal aspect, swelling is more marked arround, metacarpo phalongineal joint of middle finger (R). No abrasion or open injury seen over hand. For (Sec) ? X-ray is advised. Above mentioned injury is under observation and caused by some blunt object and Duration is less than ½ day. Note: X-Ray (R) hand is advised.” 8. All the appellants, in their statements, under Section 313 Cr.P.C. denied incriminating circumstances appearing against them in prosecution evidences and commonly pleaded defence of their false implications. For (Sec) ? X-ray is advised. Above mentioned injury is under observation and caused by some blunt object and Duration is less than ½ day. Note: X-Ray (R) hand is advised.” 8. All the appellants, in their statements, under Section 313 Cr.P.C. denied incriminating circumstances appearing against them in prosecution evidences and commonly pleaded defence of their false implications. They further took the defence that it was informant Chob Singh, who, to save his head from the crime committed by him of setting ablaze house of Saitan Singh to fire, had lighted his thatch and had fabricated a false case roping therein all the appellants. In support of their defence, accused persons tendered documentary proof of Exhibit Kha-1 and Kha-2, which are the charge-sheet of Crime No. 168 of 1979 under Section 436 I.P.C. filed against Ram Das, Chob Singh, Charan Singh and Rohan Singh. Noticeable fact is that Ram Das is the father of informant Chob Singh, P.W.1and Rohan Singh is his brother, with whom there was a brawl the earlier day. 9. Trial judge on the basis of prosecution evidences tendered before it concluded that prosecution had established accused guilt to the hilt and, therefore, convicted and sentenced all the appellants as mentioned herein before in the opening paragraph of this judgment and hence challenge in these appeals by the convicted accused is to their aforesaid conviction and sentence. During the pendency of the appeal one of the appellant Chiranji Lal expired and hence his appeal was abated on 19.3.2007. Now appeals of rest of the eight surviving appellants are being considered by this judgment. 10. Both the appeals were admitted in this Court in the year 1982 and at that time appellants were allowed bail. After a gap of 29 years when it were listed for final hearing nobody appeared to argue these appeals for the appellants and consequently, applying apex Court decision in Bani Singh v. State of U.P., AIR 1996 SC 2639; Sri Arun Srivastava was appointed as amicus curie to help the Court in deciding the appeal and argue it on behalf of appellants. Sri Pantajali Mishra, learned A.G.A. representing the State was heard in opposition. 11. Sri Pantajali Mishra, learned A.G.A. representing the State was heard in opposition. 11. It is submitted by learned amicus curie that the impugned judgment of conviction and sentence is unsustainable as it is proved, on preponderance of probability, by the appellants, that thatch in question was put to fire by P.W.1 himself and, therefore, conviction and sentence of the appellants cannot be upheld and deserves to be set-aside. It is further submitted that the F.I.R. lodged by Saitan Singh against informant, his father and brother was earlier in point of time as the same was recorded as Crime No. 168 of 1979 and the F.I.R. Exhibit-Ka-1 of the present crime was recorded as a cross version, registered as Crime No. 168A of 1979. It is further submitted that it is admitted to both the sides that the thatch in question was put to fire at or about the date and time of the incident and, therefore, in that respect, the prosecution version as well as the defence case is equally compatible with each other. The only bone of contention in between the prosecution and the appellants is as to whether the same was torched by the appellants or by informant himself who, to save his skin from the crime committed by him of setting to fire house of appellant Saitan Singh has implicated the appellants. Learned counsel submitted that charge-sheet Exhibit Kha-1, relied upon by the appellants unerringly established beyond any shadow of doubt that the appellants have established their case on preponderance of probability and in the F.I.R. lodged earlier against the informant, his father and brother, it was concluded by the I.O. in charge-sheet, Exhibit Kha-1, that it was informant Chob Singh who had ignited his house as well as house of informant Saitan Singh and, resultantly defence of the appellant is probable. It is further contended that 161 Cr.P.C. statements of fact witnesses were recorded very belatedly more than a month after the incident without any convincing explanation forth coming for such belated examination and this castes a doubt on the authenticity of the prosecution story, and therefore none of prosecution witnesses are reliable. It is further submitted that Rohan Singh brother of informant, with whom there was exchange of blows a day earlier was withheld by the prosecution and was not examined to lend credence to the prosecution story. It is further submitted that Rohan Singh brother of informant, with whom there was exchange of blows a day earlier was withheld by the prosecution and was not examined to lend credence to the prosecution story. It is next submitted that but for the mother and the son, who were interested, enemical, partisan, related witnesses, no other independent person came forward to support prosecution version, which fact also creates doubt on the authenticity of the prosecution version which infact is false. It is also argued that during investigation Rajveer, P.W.2, had stated before the I.O. that he had not seen as who had set a blaze informant’s thatch and consequently conviction of appellant Dhyan Singh under Section 436 I.P.C. simplicitor cannot be sustained and is to be set-aside.PW3 had also corroborated PW2 on the said aspect of the incident during investigation and hence charge under Section 436 was failed to be established as what was deposed before the Court was embellishment and contradiction which statement cannot be attached with any credence.PW3 had made categorical statement to the I.O. that somebody had put her house to fire from match box and she could not state specifically who was the culprit. It is further submitted that number of injuries sustained by the two injured were not commensurate with the number of assailants and, since, who assaulted and who did not assault cannot be deciphered consequently convicted under Section 323/149 as well as conviction under Section 147 I.P.C. both have to be set-aside. Concludingly, it was submitted that the incident occurred in 1982 more than 29 years ago and if the appeal of the appellants is not allowed on its merit, the sentenced already served by them will meet ends of justice and they be released by reducing their sentences to such an extent. 12. Learned A.G.A. per contra, supported the prosecution version as well as the impugned judgment and contended that there was no occasion for the witnesses to cook up a false story and their presence at the scene of the incident, being injured, cannot be doubted and appeal lacks merits and be dismissed. 13. I have considered the arguments raised by both the sides. 13. I have considered the arguments raised by both the sides. Some of the facts about the incident are admitted to both the sides and have not been challenged by the accused, and they are date, time and place of the incident, participation of some of the accused, setting a blaze to thatch of the informant, injuries sustained by two injured persons P.W.-1 and 3, their presence at the spot alongwith father of the informant Ram Das. Since both prosecution and defence admit these facts, or they have not questioned them, these facts are taken to be correct. The only apple of discard between both the versions remains to be decided is as to whether appellants have put the informant’s thatch to fire or it was informant himself who had committed said mischief to cover up his crime of putting thatch of Saitan Singh to fire. 14. In this respect, accused had gone to the police station at the earliest and got registered their F.I.R. of crime No. 168 of 1979 vide Exhibit Kha-1 against the informant, his father, brother and one Charan Singh. Investigation of the said crime ultimately resulted in charge-sheeting named accused persons for offence under Section 436 I.P.C. Exhibit Kha-1 further records that I.O., concluding the investigation of the said crime, opined that it was Chob Singh who had put his house to fire as a result of which the house of informant of the aforesaid crime, namely Saitan Singh also was gutted. Thus the defence of the appellants in the instant appeal that the informant was the real mischief maker is established on preponderance of probability. Another unconvincing feature of the prosecution version is that the incident in the present case is alleged to have occurred because of brawl, a day earlier between Rohan Singh and Shyam Singh but what is very alarming is that prosecution withheld Rohan Singh and did not examine him to establish motive for committing present crime and lend credence to it’s story. It is also very bizzare to note that investigating officer, on the following day of the incident, interrogate only Ram Kali and no other witness. He deferred interrogation of other prosecution witnesses for more than a month. This conduct by the I.O. without any plausible and acceptable explanation forth coming for the same creates doubt in the prosecution version. It is also very bizzare to note that investigating officer, on the following day of the incident, interrogate only Ram Kali and no other witness. He deferred interrogation of other prosecution witnesses for more than a month. This conduct by the I.O. without any plausible and acceptable explanation forth coming for the same creates doubt in the prosecution version. Prosecution evidence loses it’s credibility also because that nine accused were alleged to have assaulted the prosecution side but the total number of injuries sustained by it are only six. It is also not convincing that informant Chob Singh was left with only a simple injury which could be a result of fall as well, as it is a contused swelling over dorsal aspect on his hand. It is further noted that site plan indicates that house of Saitan Singh and informant are adjacent to each other and, therefore, setting a blaze to the house of Saitan Singh by the informant is not an impossibility. 15. The above discussion leads me to conclude that since accused had probabalised their defence, their conviction and sentence as recorded through impugned judgment cannot be sustained for the charge under Section 436 I.P.C. Coming to the conviction under Section 323/149 it is to be noted that some of the accused had taken alibi of not being present at the scene of the incident when it occurred. From the evidence it is not perceptible as to who participated and who did not. Number of injuries is not commensurate with number of accused and therefore participation of all the accused in the incident is doubtful. Consequently when it cannot be deciphered as to who actually was present and who were not each of the accused is entitled to benefit of doubt. In above view conviction of all the appellants under Section 323 or 323/149 cannot be sustained. In view of the above, the appeal of appellants are allowed, and their conviction and sentences imposed by impugned judgment and order are hereby set aside. All the appellants are on bail, they need not to surrender, their bail bonds and surety bonds are hereby discharged. Let a copy of this judgment be certified to the trial Court for it’s intimation. ——————