JUDGMENT : Appellant No.1, Duja @ Dhuja Hansda, Son of Late Thakur Hasda died in the year 2017 during pendency of the Criminal Appeal, as such, Criminal Appeal preferred by Duja @ Dhuja Hansda is abated vide order dated 10.10.2018 passed by this Hon'ble Court. The present Criminal Appeal is pending with respect to appellant No.2, namely, Martin Hansdak @ Martin Hansda only. 2. Heard, Mr. Manoj Kumar Sah, learned counsel for the appellant and Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State. 3. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 10th March, 2005, passed by learned 4th Additional Sessions Judge (F.T.C. No.1), Godda, in Sessions Case No.110 of 2002, whereby six accused persons, namely, Martin Hansda, Dhuja Hansda, Devilal Hansda, Suresh @ Surendra Hansda, Arjun Hansda and Bishwanath Hansda have been found guilty for the offence committed and punishable under Sections 323 and 147 I.P.C. and appellant no.2, Martin Hansda along with appellant no.1, Dhuja Hansda has further been convicted for the offence committed and punishable under Section 436 I.P.C. The learned trial court has released the appellants along with other accused persons after due admonition under Section 3 of Probation of Offenders Act for the offence committed and punishable under Sections 323 and 147 I.P.C., but has awarded rigorous imprisonment for five years for the offence committed and punishable under Section 436 I.P.C. to appellants, Martin Hansda and Dhuja Hansda, but said Dhuja Hansda has died during pendency of this appeal, and his Criminal appeal has already been abated by this Hon'ble Court. By the same impugned judgment, the learned trial court has acquitted all the accused persons including both the appellants of the charge under Section 452 I.P.C. 4. The prosecution case, is based upon, the fardbeyan of the informant, Nimai Hansda (P.W.3) recorded by M. L. Mishra, Sub Inspector and Officer-in-Charge, Deodanr Police Station on 24.11.1986 at 14 hours, wherein the informant has alleged that on 23.11.1986 at around 8 p.m., in the night, the informant along with his son, Charlish Hansda and wife, Anastasia Murmu were sitting in his house and cousin-sister, Sanisa Beth was cooking food, but the door was open. It is alleged that accused persons, namely, Dhuja Hansda, Martin Hansda, Devilal Hansda, Arjun Hansda, Biswanath Hansda and Surendra Hansda entered into the house of the informant and on the order of Dhuja Hansda, the informant, Nimai Hansda was dragged out of the house by Martin Hansda and other accused persons, due to which the informant fell down in the courtyard. It is further stated that wife of the informant came for rescue, then accused/ appellant, Dhuja Hansda assaulted the wife of the informant by means of 'Gupti' on her left hand causing bleeding injury. The informant has further stated that he was taken on road and assaulted by fists and slaps, but somehow, the informant rescued himself and fled away to Village-Karanpura at the house of his sister. The informant has further alleged that, while the accused persons were assaulting, they were shouting to put the house under fire. The informant after reaching the house of his sister, saw towards his house which was under fire. Thereafter, the informant made request to some of the persons of Mondal community to protect his house from fire. On request, Vibhuti Mandal and 6-7 other persons of Village-Karanpura extinguished the fire. The informant did not return to his house because of fear. In the morning at 10-11 a.m., the informant got information that the accused/ appellant, Dhuja and his sons have fled away from the house. Thereafter the informant went to the house and saw the door locked, as the wife and son of the informant went to the house of Sheo Murmu in an injured condition. It is alleged that on enquiry, the wife of the informant disclosed that accused/ appellant, Duja Hansda has sprinkled Kerosene oil and the accused/ appellant, Martin has put the house under fire. The informant has further stated that, when his wife made protest, then the accused/ appellant, Dhuja threatened her to remain quite and thereafter they fled away. The informant has further stated that after opening the door, he found that papers of the land and other articles are missing from the house and found some ashes and some articles as half burnt. 5. The informant has further stated that after opening the door, he found that papers of the land and other articles are missing from the house and found some ashes and some articles as half burnt. 5. On the basis of the 'fardbeyan' of the informant, the Police instituted First Information Report bearing Godda Nagar (Deodanr) P.S. Case No. 209 of 1986, dated 25.11.1986, corresponding to G.R. No.751 of 1987 under Sections 147, 323, 324, 452, 436 and 379 of the Indian Penal Code against the six named accused persons. 6. After investigation, the Police has submitted charge-sheet vide Charge-sheet No.25 of 1988 dated 29.02.1988 against the accused persons including the appellants, Dhuja Hansda, Devilal Hansda and Martin Hansda under Sections 147, 148, 149, 452, 436, 324, and 323 I.P.C., showing accused, Suresh @ Surendra Hansda, Arjun Hansda and Viswanath Hansda as absconders. 7. The cognizance of the offence has been taken against accused/appellants vide order dated 02.04.1988 and the case has been committed to the Court of Sessions vide order dated 25.01.1989. 8. The charge has been framed by the learned trial court on 14.03.2001 against all the six accused persons including appellants under Sections 147, 323, 324/149, 452 and 436 I.P.C., to which the accused persons including the appellants have pleaded their innocence and thus, they were put under trial. 9. The prosecution has examined altogether five prosecution witnesses and also exhibited the signature of informant on fardbeyan, which has been proved and marked as Exhibit-1. Anastasia Murmu, an injured witness and wife of the informant, has been examined as P.W.1, Charlis Hansda, son of the informant, has been examined as P.W.2 and he is also an eye-witness to the occurrence. Nimai Hansda, informant of the case has been examined as P.W.3, Shiv Murmu has been examined as P.W.4 and Shiv Hansda has been examined as P.W.5 and both P.W.4 and P.W.5 have been declared hostile by the prosecution. 10. After closure of the prosecution evidence, the statements of the accused persons including the appellants have been recorded under Section 313 Cr.P.C., on 05.01.2005, wherein they have pleaded their innocence and stated that they have falsely been implicated in this case and there is no legal evidence against them. The defence has not examined any witness nor adduced any documentary evidence. 11. The defence has not examined any witness nor adduced any documentary evidence. 11. The learned trial court, after hearing learned counsel for the parties and on the basis of the material brought on record, has passed the impugned judgment of conviction and order of sentence. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellants have preferred the present Criminal Appeal before this Hon'ble Court, assailing the same. 12. Heard Mr. Manoj Kumar Sah, learned counsel appearing for the appellant. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that the learned trial court has disbelieved half of the prosecution story by acquitting the accused persons including the appellants of the charge under Sections 452 and 324/149 I.P.C., but wrongly convicted the appellants along with other accused persons under Sections 323 and 147 I.P.C. and released them after due admonition under Section 3 of Probation of Offenders Act, but without having any material, the learned trial court has convicted the appellants, Martin Hansda and Dhuja Hansda (whose appeal has already stood abated) under Section 436 I.P.C. in the background, when there are material contradictions in the evidence of the prosecution witnesses. The son of the informant, Charlish Hansda (P.W.2) has not taken name of Martin Hansda and in absence of examination of the Investigating officer, the conviction of the appellant, Martin Hansda under Section 436 I.P.C. cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that Anastasia Murmu, wife of the informant has been examined as P.W.1. This witness has categorically stated during her cross-examination that she was watching the occurrence from inside of her house and has further stated that at the time of occurrence, no body came for their rescue. This witness has further stated that the fire was extinguished by the villagers of another village. This witness has stated in her evidence, which are inconsistent to the prosecution case, as made out in the 'fardbeyan'. In the fardbeyan, the informant (P.W.3-Nimai Hansda) has categorically stated that when he was assaulted by the accused persons, he fled away towards Village-Karanpura, where his sister is residing, but P.W.1 (Anastasia Murmu) has not stated so. This witness has stated in her evidence, which are inconsistent to the prosecution case, as made out in the 'fardbeyan'. In the fardbeyan, the informant (P.W.3-Nimai Hansda) has categorically stated that when he was assaulted by the accused persons, he fled away towards Village-Karanpura, where his sister is residing, but P.W.1 (Anastasia Murmu) has not stated so. Apart from this, Anastasia Murmu has submitted during her deposition as P.W.1, that she has been assaulted by Dhuja Hansda by means of knife, whereas in the 'fardbeyan', the informant (Nimai Hansda) has categorically stated that when his wife made protest, she was assaulted by Dhuja Hansda by means of 'Gupti'. Learned counsel for the appellant has further submitted that in view of such vital contradictions in the evidence of P.W.1 (Anastasia Murmu), conviction of the appellant under Section 436 I.P.C. cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that Charlis Hansda (P.W.2) has claimed himself to be an eye-witness to the occurrence, but as per his evidence made in Para-1, he has categorically stated that Dhuja Hansda has sprinkled Kerosene oil and put the house under fire. P.W.2 (Charlis Hansda) has not whispered the name of Martin Hansda (appellant), as the person involved in putting the house under fire, though P.W.1 (Anastasia Murmu) and P.W.3 (Nimai Hansda) have taken the name of Charlis Hansda (P.W.2) as an eye-witness to the occurrence. Learned counsel for the the appellant has further submitted that since there is vital contradiction in the fardbeyan of the informant, from evidence of P.W.1 (Anastasia Murmu) and evidence of P.W.3 (Nimai Hansda), informant of the case as well as evidence of P.W.2 (Charlis Hansda), so far allegation against appellant, Martin Hansda is concerned, as such, the conviction of the appellant, Martin Hansda under Section 436 I.P.C. is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted that Nimai Hansda, informant of the case, has been examined as P.W.3, his credential is highly doubtful. Learned counsel for the appellant has further submitted that Nimai Hansda, informant of the case, has been examined as P.W.3, his credential is highly doubtful. As the informant has stated in the 'fardbeyan' that he went to the house of his sister at Village-Karanpura and witnessed the occurrence from there and requested the persons of the 'Mondal' community to save his house from fire, but while deposing as P.W.3, this witness has stated that he has witnessed the occurrence from the bushes and thereafter in the night, he went to the house of his sister and also informed the Police in the night itself. As such, the conviction of the appellant on such materials, which are contradictory to each other, cannot sustain in the eyes of law. Learned counsel for the appellant has lastly submitted that there is no material to show that the house was put under fire. Neither the Investigating Officer nor the Doctor have been examined in this case and the learned trial court has disbelieved half of the prosecution case by acquitting the accused persons from the charge under Sections 324/149 and 452 I.P.C., as such, conviction of the appellant under Section 436 I.P.C. cannot sustain in the eyes of law. 13. Heard, Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial court on the basis of the material available on record and the learned trial court has rightly convicted the appellants under Sections 323 and 147 I.P.C. and also under Section 436 I.P.C. The appellants have been released after due admonition under Section 3 of Probation of Offenders Act for the offence committed under Sections 323 and 147 I.P.C., but have been convicted under Section 436 I.P.C. and awarded rigorous imprisonment for five years. Learned counsel for the State has further submitted that Anastasia Murmu (P.W.1) and Nimai Hansda (P.W.3) are consistent in their deposition that after sprinkling Kerosene oil by the accused persons, Dhuja Hansda and Martin Hansda, put the house under fire, as such, the learned trial court has rightly convicted the appellant under Section 436 I.P.C. 14. Heard, Mr. Manoj Kumar Sah, learned counsel for the appellant and Mrs. Heard, Mr. Manoj Kumar Sah, learned counsel for the appellant and Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State and also perused the entire records i.e. First Information Report, framing of charge, evidence of five prosecution witnesses, one prosecution exhibit, statement of the appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. 15. This Court has scrutinized the evidence of P.W.1 (Anastasia Murmu), P.W.2 (Charlis Hansda) and P.W.3 (Nimai Hansda) and compared the same with the First Information Report, It appears that there is vital contradiction in the deposition of the informant (Nimai Hansda) as P.W.3 from his own fardbeyan. The informant has claimed that he was assaulted on the road after the accused persons dragged him out of the house and when his wife (P.W.1) came for rescue, she was also assaulted by means of 'Gupti' by accused-Dhuja Hansda, causing bleeding injury on her left hand, but the learned trial court has already acquitted the accused persons of the charge under Sections 452 and 324/149 I.P.C. The State or the informant has not preferred any appeal against the said acquittal and that attains its finality. The informant has subsequently stated that he went to the house of his sister in Village-Karanpura and after disclosing the entire episode to her, he saw his house under fire. Thereafter the informant made request to the people of Mondal Community to save his house, but while deposing in the Court, material contradiction was found in the evidence of P.W.3 (Nimai Hansda), informant of the case. Informant has claimed himself to be an eye-witness to the occurrence by saying that after fleeing from the house, he saw the occurrence from the bushes. This version of the informant seems to be exaggerated, as the informant has subsequently tried to become an eye-witness to the occurrence. Thus, the informant has taken departure from his 'fardbeyan' which itself creates doubt about the credential of the informant. P.W.2 (Charlis Hansda) has not alleged anything so far appellant, Martin Hansda is concerned, in putting the house under fire though Charlis Hansda (P.W.2) has been cited as an eyewitness in the First Information Report as well as in the deposition of P.W.1 and P.W.3, who are mother and father of Charlis Hansda (P.W.2). P.W.2 (Charlis Hansda) has not alleged anything so far appellant, Martin Hansda is concerned, in putting the house under fire though Charlis Hansda (P.W.2) has been cited as an eyewitness in the First Information Report as well as in the deposition of P.W.1 and P.W.3, who are mother and father of Charlis Hansda (P.W.2). Under such sketchy background, the conviction of the appellant, Martin Hansda under Section 436 I.P.C. cannot sustain in the eyes of law, only on the statement of the wife of the informant, P.W.1 (Anastasia Murmu), as her deposition is not free from suspicion. This witness (P.W.1) has stated that she was assaulted by means of 'chura' on her left hand which is contradictory to the prosecution case. In Para-7, this witness has categorically stated that on brawl raised by them, no body came from village rather in her deposition made in Para-2 of her examination-in-chief, she has categorically stated that fire was extinguished by the villagers of another village. This witness has further categorically stated in Para-9 of her cross-examination that she has seen the occurrence from her house. Thus, these three material facts are contradictory to the evidence of P.W.3 (Nimai Hansda) and the prosecution case. As per P.W.1, she has stated that the fire has been extinguished from the house by the villagers of different village which is contradictory to the evidence of the informant made in the First Information Report and in Para-3 of his examination-in-chief. P.W.1 (Anastasia Murmu) has stated in Para-7 that on brawl, none of the villagers came, but the informant who has been examined as P.W.3 has categorically stated that on brawl, several persons assembled there and lastly credential of P.W.1 (Anastasia Murmu) is doubtful, as she has stated in Para-9 of her cross-examination that she has seen the occurrence from her house, which was under fire then it is not possible for her to observe specifically that who has sprinkled Kerosene oil and who has put the house under fire. 16. Under the aforesaid circumstances, the appellant who is agnate of the informant is hereby given benefit of doubt by acquitting him of the charge and conviction under Section 436 I.P.C. 17. Accordingly, the Judgment of conviction and order of sentence, both dated 10th March, 2005, passed by the learned 4th Additional Sessions Judge (F.T.C. No.1), Godda, in Sessions Case No.110 of 2002, is hereby set aside. 18. Accordingly, the Judgment of conviction and order of sentence, both dated 10th March, 2005, passed by the learned 4th Additional Sessions Judge (F.T.C. No.1), Godda, in Sessions Case No.110 of 2002, is hereby set aside. 18. The appellant, who is on bail, is discharged from the liability of the bail bonds. 19. Accordingly, the instant appeal stands allowed. 20. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.