JUDGMENT : AKHILESH CHANDRA, J.:–Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. 2. The solitary appellant has preferred this appeal against his conviction for the offences under Section 436 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and to pay a sum of Rs. 5000/- (five thousand), in default, further to undergo rigorous imprisonment for three months, as awarded on 6th June 2002 by learned 6th Additional Sessions Judge, Begusarai, in connection with Session Trial No. 12/85 arising out of Barauni P.S. Case No. 13/1983. 3. The prosecution case, in brief, as reveal from the un-exhibited fardbeyan of P.W.2 Shekho Mahto recorded on 19.01.1983 at 4.30 a.m. at Chakiya O.P. by Sri B.H. Singh, S.I., (not examined), is that in the night at about 12.00 p.m. there was certain alarm of fire catching hutments of informant and others and around 20 to 25 persons armed with Lathi, gun, pistol, Bhala etc. were involved in such act and under flame the informant could be able to identify altogether 15 persons including the appellant who was specifically alleged with carrying kerosene oil in a tin and Lukathi (flaming fire) and put all the huts one by one under fire due to some previous dispute and caused substantial loss of food-grains and animals. 4. Altogether twelve persons were put on trial and in order to substantiate the charges except two witnesses there is nothing on record. P.W. 1 namely, Ishwar Mahto who on alarm awoke and came out of his house found the appellant with Lukathi and kerosene oil and put in house of one Ramdeo Sah (not examined) and P.W.2 namely, Shekho Mahto under fire which got other hutments affected, and in cross examination, this witness in paragraph 10 admits, he could awoke only on alarm of fire and by that time everything was finished. Further, in paragraph 12, due to darkness he failed to identify all the miscreants, and thus, identified by him including appellant who were at a distance of one Rassa from him. 5. P.W.2 namely, Sekho Mahto also awaking after alarm and on coming out found fire was on and he could identify the appellant. Further, in paragraph 12, due to darkness he failed to identify all the miscreants, and thus, identified by him including appellant who were at a distance of one Rassa from him. 5. P.W.2 namely, Sekho Mahto also awaking after alarm and on coming out found fire was on and he could identify the appellant. In paragraph 16 his attention was drawn towards the sequence of putting the hutments under fire by the appellant, but, as rightly submitted by learned counsel for the appellant, in absence of Investigating Officer, he has been deprived of a valuable right accrued to and explained other latches on the part of prosecution. 6. Learned Additional Public Prosecutor in spite of his best efforts could not be able to submit with force that prosecution has been able to establish the charges and due to non examination of Investigating Officer, there is no material to support the prosecution case which cuts the very root. 7. Having regard to the facts and circumstances, conviction and sentence of the appellant is not sustainable, consequently, set aside. This appeal is hereby allowed. The appellant is set free from the liabilities of the respective bail bond furnished on his behalf. 8. Let the lower court records be sent back to the court below forthwith.