JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 5th December 2003, passed by the learned 3rd Additional Sessions Judge, Palamau at Daltonganj, in S.T. No.280 of 1993, arising out of Manatu P.S. Case No.74 of 1991, corresponding to G.R. Case No.1643 of 1991, whereby and where under the accused appellants were held guilty for the offences punishable under sections 148 and 436 read with section 149 of I.P.C. and were sentenced to undergo R.I. for one year for the offence u/s 148 of IPC and six years R.I. for offence under Section 436/149 of IPC and the sentences were directed to run concurrently. 2. The prosecution case as unfolded in the fardbeyan of PW – 3 Narendar Singh, whose statement has been recorded by Manatu police station in the district of Palamau at Daltonganj on 17.10.1991 at 10 P.M. is as under: It is stated by the informant Narendra Singh, PW – 3 that he was returning back from the village Tirondha to his house at village Saraidih and when he reached near Haraiya Bandh, he heard sound of breaking the lock of his house and when he proceeded towards his house, he saw 50-60 persons standing on the Haraiya Bandh, upon which he suspected that extremists have arrived at his house and saw the extremists were armed with gun, lathi, garasa and torch. Subsequently at the interval of very little time, he saw flames of fire coming from back side of his house. The informant hid himself there and saw that the extremists were raising slogan of “MCC Jindabad, Sun Light Murdabad”. He further saw that from whole house, flames of fire were rising, in the light of which he identified 1. Laxman Mochi, 2. Rajbali Bhuian, 3. Badri Bhuian, 4. Bigawan Bhuian, 5. Badesh Bhuian, 6. Krishna Mahto, 7. Santosh Mahto, 8. Lakhan Mahto, 9. Bechan Singh all armed with gun, 10. Mahendra Bhuian, 11 Rajesh Mahto both armed with garasa. Besides above named 11 persons, he also saw 50 persons of the mob whose names and resident were not know to him, but claimed to identify them by seeing their faces. The Chaukidar (Watchman) fleeing from the informant's house took shelter and hid himself in the house of Kameshwar Pandey. Mahendra Bhuian, 11 Rajesh Mahto both armed with garasa. Besides above named 11 persons, he also saw 50 persons of the mob whose names and resident were not know to him, but claimed to identify them by seeing their faces. The Chaukidar (Watchman) fleeing from the informant's house took shelter and hid himself in the house of Kameshwar Pandey. Total 8 fires in air were made by the extremists, who ordered Kameshwar Pandey to go inside the home and then Kameshwar Pandey went inside his home and the extremists blocked the exit. Thereafter the extremists went away towards north of the village raising slogans and then the informant came near his house and saw the lock of the door broken and some doors were cut by axe. Kameshwar Pandey informed him that the two oxen tied inside his house were let free by the extremists. The informant did not dare to enter into his house and so he was unable to state about the household articles set ablaze or taken away by the extremists. Atlash cycle and bed of the Chaukidar kept in the informant's house were also taken away by the extremists. Then the informant and said Chaukidar Suresh Manjhi came together at the Tarhashi O.P. and the informant gave his fardbayan to the aforesaid effect. The extremists were wearing lungi, ganji and kurta paijama. They caused loss of about rupees one lakh by setting fire in the house of the informant. 3. On the basis of the aforesaid farbayan, the formal FIR was drawn vide Manatu P.S. Case No.74 of 1991 and investigation of the case was taken up and the case commenced. After completion of the investigation, the charge-sheet was submitted and the case was committed to the Court of Sessions and the trial of the case commenced. After conclusion of the trial, the learned court below convicted the appellants under Sections 148, 436/149 of IPC and passed the impugned Judgment of conviction and order of sentence, which is under challenge. 4. Heard Ram Lakhan Yadav, learned defence counsel appearing on behalf of the appellants and learned A.P.P. Shiv Shankar Kumar, appearing on behalf of the State including the learned counsel Pankaj Kumar Dubey appearing on behalf of the informant. 5. 4. Heard Ram Lakhan Yadav, learned defence counsel appearing on behalf of the appellants and learned A.P.P. Shiv Shankar Kumar, appearing on behalf of the State including the learned counsel Pankaj Kumar Dubey appearing on behalf of the informant. 5. At the outset, learned defence counsel appearing on behalf of the appellants submitted that out of nine appellants, five have died during the pendency of this appeal, who are appellants No.2 Rajbali Bhuian, appellant No.3. Badri Bhuian, appellant No.6 Santosh Mahto, appellant No.7 Bechan Singh and appellant No.9. Mahendra Bhuian and learned counsel for the appellants pointed out that a supplementary affidavit on behalf of the appellants have been filed stating therein in para – 3 that the aforesaid appellants have died and it has been prayed that since these appellants have expired and none of their near and close relatives of the deceased appellants have come forward to continue with this appeal on their behalf and therefore let this appeal be abated with respect to the aforesaid deceased appellants. 6. Accordingly, this appeal gets abated with respect to the aforesaid deceased appellants. The office is directed to delete the name of the aforesaid deceased appellants from the cause title of the memo of appeal. Arguments on behalf of the appellants 7. 6. Accordingly, this appeal gets abated with respect to the aforesaid deceased appellants. The office is directed to delete the name of the aforesaid deceased appellants from the cause title of the memo of appeal. Arguments on behalf of the appellants 7. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel submitted that it is admitted case of the prosecution that there was enmity between the appellants and the informant's people as evident from the statement of the accused appellant No. 5 Krishna Mahto recorded under Section 313 of Cr.P.C. as well as admission of PW – 3 in para – 6, under which, one Govind Mahto was murdered by Sagar Singh and Ram Charitar Singh (father of the informant PW -3) and Sagar Singh and Ram Charitar Singh, (the father of the informant) had been in jail custody and the appellant Krishna Mahto and the deceased appellant Santosh Mahto were the witnesses in that murder case and as a result of which these appellants were made accused in this case with an intention to take revenge from them and they have been falsely implicated in this case due to the enmity between the prosecution and the defence party and that is why from the plain reading of the PW – 3, it appears that the entire depositions are false and major inconsistencies are found in his deposition. Further it has been pointed out by the learned counsel appearing on behalf of the appellants that later on during the pendency of this case, a good sense prevailed between appellants and the informant and they had compromised their dispute and a joint compromise petition has also been filed by the appellants and the informant vide I.A. No.342 of 2022, by which, both the parties have resolved their dispute once and for all and they are leading a very peaceful and harmonious relationship and therefore apart from the merit of this case, this factum may also be taken into account to appreciate the entire evidences available on record and having taken into consideration all these facts, it is urged on behalf of the appellants the judgment of conviction and order of sentence is fit to be set-aside. 8. On the other hand Mr. 8. On the other hand Mr. Pankaj Dubey, learned counsel appearing on behalf of the informant PW -3 Narendar Singh also submitted that a joint compromise petition has been filed vide I.A. No.342 of 2022, by which, the dispute between the informant and appellants have resolved once and for all and thereby a very peaceful and cordial relationship have established between them and both of them do not want to pursue this case in view of the compromise taken place between them due to intervention of the well-wishers of the parties. Arguments on behalf of the Respondent 9. On the other hand, learned A.P.P. appearing on behalf of the State without opposing the factum of compromise, which took place between the parties, contended that the learned trial court has rightly appreciated the evidence of PW – 3, who is the informant of this case and also having taken into consideration the depositions of other witnesses and evidences available on record, passed the impugned judgment of conviction and order of sentence and there is no legal point to interfere and this appeal is fit to be dismissed being devoid of merit. 10. Having heard learned counsel for the parties, perused the record of the case including the lower court record and the compromise petition being I.A. No.342 of 2022 filed on behalf of the parties. Appraisal & Findings 11. It is found that the appellants have been convicted for committing mischief of setting fire in the house of the informant Narendar Singh PW – 3 along with several accused persons. In support of the prosecution, only three witnesses have been examined on behalf of the prosecution, namely PW – 1 Kameshwar Pandey who is FIR named witness, PW – 2 Suresh Ram, who has been named as a Chaukidar in the FIR and PW – 3 Narender Singh informant himself in this case. 12. PW – 1 Kameshwar Pandey, being an important witness as named in the FIR as eye-witness in whose house the chaukidar of the village PW – 2 Suresh Ram is said to have hidden himself out of fear at the time of occurrence, has been declared hostile as he has not supported the case of the prosecution. He stated that his statement was not recorded by the police. 13. He stated that his statement was not recorded by the police. 13. PW – 2 Suresh Ram is said to be the chaukidar of the village and he is said to have hidden himself in the house of PW – 1 Kameshwar Pandey as evident from the FIR itself. He also did not support the case of the prosecution, particularly with respect to the participation of the appellants in the commission of the offence of setting the house of the informant on fire and therefore this witness also did not support the case of the prosecution at all with respect to the charges levelled against the accused appellants. 14. Now the sole evidence remained to take into consideration, i.e. the deposition of PW -3 Narendar Singh, on whose statement, learned trial court had convicted the appellants by finding them guilty for the offence punishable under Sections 148/436/149 of IPC. From the analysis of the testimonies of this witness P.W.3 it is entrenched that there are major discrepancies in his statement with respect to the time of the alleged occurrence, where in the opening paragraph of PW – 3, he has stated that the occurrence had taken place at 10 O'clock at night, while in the FIR, it has been stated that it has taken place at 8 O'clock. Further in the examination-in-chief, this witness did not state pointedly about anyone of the appellants who had committed mischief of setting the house of the informant on fire, rather omnibus and general statement has been given in the examination-in-chief that he had seen several persons in the light of flames of the fire, in which, he identified the appellants. This witness had also stated that he has seen the flames of the fire of the house raising and heard the slogan “MCC Jindabad-Sun Light Murdabad" without disclosing the specific act attributed against anyone of the appellants, for committing the offence of mischief by fire on setting his house on fire and therefore the charges of setting on fire the house of the informant (P.W.3) by these appellants remains unsubstantiated beyond reasonable doubt and only on chance and probabilities, the learned trial court below has passed the impugned judgment of conviction and order of sentence without any cogent evidence of corroboration of chance and probabilities as evident from para 10 of the judgment also. The learned trial court has observed that “it has come into the evidence of PW – 3 that unnamed accused persons, who were also the members of the extremist mob forming unlawful assembly, had Mashal (a long burning stick) in their hand and there is a probability of setting fire by them and on the basis of probability the learned trial court has come to the conclusion that the appellants are guilty of committing mischief by setting fire in the house of the informant of Narendar Singh, which is not tenable in the eyes of law inasmuch as there is a well established fundamental principle of criminal jurisprudence that the guilt of the accused must be proved beyond reasonable doubt. Further this witness has admitted in para – 6 of the cross-examination that on the date of occurrence his brother, father and uncle were in jail as they had gone to jail in the murder case of one Govind Mahto, who was the cousin of the appellant Krishan Mahto and Santosh Mahto (since deceased during the pendency of this appeal). Further from para – 8, it is found that there are major discrepancies about the time of the incident, which has destroyed the case of the prosecution in the light of the fact that the I.O. in this case has also not been examined and therefore the veracity and truthfulness of the prosecution case with respect to the time, place and date of occurrence remains unsubstantiated and not proved. Further the discrepancy and inconsistency is also found in the contents of the fardbayan of the informant, which is evident from para 3 of the PW – 1 where he categorically denied his version before the Police falsifying the case of the prosecution. Since I.O. in this case has not been examined and therefore the veracity and truthfulness of the testimonies of this victim eye-witness could not be effectively tested. PW – 3 has proved his signature, which is marked as Ext-1 on the farbayan in which his statement about the presence of P.W.1 could not be tested its correctness because of non-examination of I.O. and categorical denial of the prosecution case in unequivocal words by P.W.1. PW – 3 has proved his signature, which is marked as Ext-1 on the farbayan in which his statement about the presence of P.W.1 could not be tested its correctness because of non-examination of I.O. and categorical denial of the prosecution case in unequivocal words by P.W.1. It is also relevant that five witnesses have been cited as a witnesses as per the charge-sheet, which is available on record, but only three of them have been examined and neither of the remaining witnesses have turned up to record their depositions during the course of trial and in this regard, learned defence counsel appearing on behalf of the appellants has drawn the attention of this Court vide Section 114, illustration (g) of the Indian Evidence Act, 1872, which reads as under:- “114 – The Court may presume existence of certain facts. ---- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” (a)……… (f)……… (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; In view of aforesaid proposition of law and also the evidences on record, it is found that there is no iota of evidence to corroborate the involvement of anyone of the accused appellants in the commission of the offence of mischief by setting fire in the house of the informant Narendar Singh. 15. It is further found that both the parties, the informant and the accused-Appellants have entered into a compromise by resolving their dispute once and for all by intervention of the well-wishers of the parties and a good sense had developed among them and they have settled their dispute outside the Court and informant does not want to proceed against the appellant, as contended by the learned counsel Mr. Pankaj Dubey, who is appearing on behalf of the informant and also an I.A. No.342 of 2022 of joint compromise application which is filed jointly is available on record. 16. Pankaj Dubey, who is appearing on behalf of the informant and also an I.A. No.342 of 2022 of joint compromise application which is filed jointly is available on record. 16. It is also found that a categorical defence of false implication was taken in the statement of accused-appellant Krishna recorded under Section 313 of the Cr.P.C. where the admitted fact has been disclosed by the said accused-appellant in his statement recorded under section 313 of Cr.P.C. which has also been noticed by the learned trial court below and the attention of this defence has been drawn to the witness PW – 3 who admitted in para 6 and 7 of his cross-examination also, but the learned court below did not appreciate the defence taken by the accused appellants and therefore in appreciation of the evidence of PW – 3 was not according to the legal proposition and therefore the guilt of the accused persons is found bad in law and thus the judgment of conviction and order of sentence does not hold good. 17. Having taken into consideration, the aforesaid discussion, this Court comes to a finding that the prosecution did not substantiate the charges of committing offence of mischief by setting fire in the house of the informant against anyone of the appellants and therefore this Court found that the learned trial court has committed gross error in appreciating the evidences available on record vis-a-vis guilt of the accused appellants for the offence punishable under sections 148/436/149 of the IPC. 18. As such, Judgment of Conviction and order of sentence dated 5th December 2003, passed by the learned 3rd Additional Sessions Judge, Palamau at Daltonganj, in S.T. No.280 of 1993, arising out of Manatu P.S. Case No.74 of 1991, corresponding to G.R. Case No.1643 of 1991, against the accused-appellants for the offence punishable under sections 148/436/149 of the IPC is set-aside. 19. Accordingly, the appeal is allowed and the I.A. No.342 of 2022 is also disposed of. 20. The appellants are on bail and they are discharged from the liability of bail bonds. 21. Let the Lower Court Record be sent back forthwith to the concerned court below.