JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. I have already heard the arguments advanced by Mrs. Chandana Kumari, learned counsel for the appellants as well as Mr. Rajesh Kumar and Mrs. Nehala Sharmin, learned Addl. P.P. and Spl. P.P. appearing for the State. 2. This instant criminal appeal is directed against the judgment and order of conviction and sentence dated 14/16.08.2007 passed by learned 1st Additional Sessions Judge, Dumka in S.T. No.195 of 2006 whereby and whereunder, the appellants have been held guilty for the offence under Section 436 of the Indian Penal Code and sentenced to undergo R.I. for seven years. 3. The factual matrix giving rise to this appeal is that on 22.01.2006 at about 07:00 a.m., Sanchan Manjhi and Sukar Manjhi were allegedly imbedding pole on the land of their nephew (Bhagina) Chetan Manjhi. Upon objection raised by the informant Bhutu Manjhi, they started a commotion and Ramu Manjhi and Militri Manjhi came to the place of occurrence with lathis in their hands. All the accused persons climbed on the roof of the house and Ramu Manjhi lit fire on the roof and Sanchan Manjhi set fire to the straw Punj. The villagers assembled after the occurrence, but the house of the informant and other articles including 30 quintals of paddy was burnt incurring loss Rs.50,000/- the informant.On the basis of above information, F.I.R. was instituted as Ramgarh P.S. Case No.09 of 2006 for the offence under Section 436 of the I.P.C. 4. After completion of investigation, charge-sheet was submitted against the appellants for the offence under Sections 436 of the I.P.C. Accordingly, cognizance was taken and subsequently, the case was committed to the Court of Sessions where Sessions Trial No.195 of 2006 was registered. Charges were framed against the accused appellants under Section 436 of the I.P.C. which was read over and explained to them, to which they denied and claimed to be tried. 5. In the course of trial, altogether eight witnesses were examined by the prosecution and following documentary evidence: Exhibit 1 : Endorsement on the Fardbeyan 6. After conclusion of trial, the appellants were held guilty for the aforesaid offence and sentenced as stated above which has been assailed in this appeal. 7. 5. In the course of trial, altogether eight witnesses were examined by the prosecution and following documentary evidence: Exhibit 1 : Endorsement on the Fardbeyan 6. After conclusion of trial, the appellants were held guilty for the aforesaid offence and sentenced as stated above which has been assailed in this appeal. 7. Learned counsel for the appellants has contended that the only allegation against the appellants is that they were putting a pole on the land of one Chetan Manjhi, which was objected to by the informant and hot discussion took place. It is further contended that there was land dispute between the parties and only with a view to grab the land, the informant in connivance with others has implicated the appellants. It is also not proved that the alleged house was used as dwelling house or for custody property. There is no specific allegation levelled against these appellants except Ramu Manjhi of putting the house on fire. It is further contended that neither any incriminating article has been recovered from the possession of the appellants nor any incriminating article, has been recovered and seized from the place of occurrence. Investigating Officer of the case has investigated the place of occurrence and has seen the burnt house but he did not seize the burnt articles from the place of occurrence. The prosecution has miserably failed to prove the charge levelled against appellants beyond all reasonable doubt and they have been convicted only with the aid of Section 34 of the I.P.C., the ingredients of which, have not been conclusively proved by the prosecution. Therefore, conviction and sentence of these appellants is absolutely illegal and not justified under law and liable to be set aside. 8. On the other hand, learned Addl. P.P. and Spl. P.P. appearing for the State have raised serious objection against the arguments made on behalf of the appellants and submitted that the learned trial court has very wisely and aptly appraised and appreciated the evidence available and record and rightly convicted and sentenced the appellants.These appeals have no merit and fit to be dismissed. 9. I have given anxious consideration to the aforesaid contentions raised on behalf of both side and also perused the impugned judgment and order along with materials available on record. 10. 9. I have given anxious consideration to the aforesaid contentions raised on behalf of both side and also perused the impugned judgment and order along with materials available on record. 10. It appears that in the course of trial altogether eight witnesses were examined by the prosecution out of them P.W.2 viz. Kistu Rai, P.W.3 viz. Sanatan Kumar Rana, P.W.4 viz. Laldev Mirdha and P.W.5 viz. Akleshwar Manjhi have been declared hostile by the prosecution as they have not supported the prosecution case. P.W. 7 viz. Chetan Manjhi is a hearsay witness and has testified that he was in his father’s house at Dumka and has been informed by the informant about the incident. P.W.1 viz. Jhanjhari Devi, who is the wife of informant (Bhutu Manjhi) has deposed that the incident is about one year ago. She was at home at the time of incident and came out from the house after hearing hullah. She has further deposed that she has identified the accused persons in the dock.In her cross-examination, she has stated that the accused persons are her Gotiya and that there is land dispute also. She is not an eye witness of occurrence. P.W.8 Bhutu Manjhi is the informant of the present case, who has categorically deposed that the incident occurred one year ago at around 07:00 a.m., when Sanchan Manjhi and Sukar Manjhi began fixing a pole on Chetan Manjhi’s land (his nephew). Informant has further deposed that he objected, Sanchan and Sukar Manjhi started shouting, in the meantime, Ramu and Militari Manjhi came and started making quarrel. Informant has further deposed that Ramu climbed over the roof of his house and set fire on the roof made of straw. Informant has further deposed that his entire house and household articles were burnt as such, informant sustained a loss of Rs.50,000/- despite efforts to extinguish it.In his cross-examination, this witness admits that land dispute is going on between Chetan Manjhi and the accused persons. Chetan Manjhi entrusted the informant to look after his lands. P.W.6 Bishnudev Prasad is the I.O. of this case who has deposed that the accused persons were arrested but he has not seized anything from the place of occurrence. Chetan Manjhi entrusted the informant to look after his lands. P.W.6 Bishnudev Prasad is the I.O. of this case who has deposed that the accused persons were arrested but he has not seized anything from the place of occurrence. He has further deposed that the house of the informant and straw punj were situated in such a manner that the fire, taking place in the straw punj, can catch the house of the informant. During course of investigation, he has also came to know that dispute was going on between the accused persons and the informant with respect to land.In his cross-examination also, he reiterates that he has not seized any burnt articles. 11. Here, it is pertinent to extract the relevant provisions which, reads as under:- Section 436 of the I.P.C. reads as under: 436. Mischief by fire or explosive substance with intent to destroy house, etc. - Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. In order to prove offence punishable under Section 436 of the I.P.C., it is necessary to establish by evidence: (i) that the accused caused destruction of the property; (ii) the act of destruction resulted in diminishing the value or utility of the property or injury to certain person or property; (iii) the accused had committed the act intending or knowing that he was likely to cause loss or damage to any property; (iv) causing of such injury or wrongful act; (v) that the property injured consists of a building; (vi) that the building was ordinarily used as a human dwelling or as a place for custody of property. 12. It appears that there is no concrete evidence that the household articles were burnt and there is no seizure list.Since, I.O. (P.W.6) has also been examined. According to his evidence, he saw the burnt house but has not seized any burnt articles from the place of occurrence. 12. It appears that there is no concrete evidence that the household articles were burnt and there is no seizure list.Since, I.O. (P.W.6) has also been examined. According to his evidence, he saw the burnt house but has not seized any burnt articles from the place of occurrence. P.W.8, informant, has claimed to see Sanchan and Sukar Manjhi were fixing a pole in the land of Chetan Manjhi and upon raising objection, hot talk took place between them. Meanwhile, Ramu Manjhi climbed over the roof of his house and set fire on the roof. The roof was of straw, hence, entire house burnt into ashes. It further appears that none of the witnesses have been able to say as to what articles were kept in the said house and the said house was being used as a dwelling house by the informant party. It is also apparent that there were inimical terms between the informant and the accused persons due to land dispute. Therefore, it does not come under the mischief of Section 436 of the I.P.C. and the ingredients of offence under Section 436 of the I.P.C. is absolutely lacking in this case. 13. In the aforesaid facts and circumstances the materials available on record, I find that the learned trial court has committed serious illegality while appreciating the evidence of witnesses and arrived at wrong conclusion about the guilt of the appellants. Therefore, impugned judgment and order of sentence of the appellants is hereby set aside. 14. Accordingly, both the appeals are allowed . Since, the appellants are on bail, they are discharged from the liability of their bail bonds and sureties are also discharged. 15. Pending I.A., if any, stands disposed of. 16. Let a copy of this judgment along with Trial Court record be sent back to the concerned Trial Court for information and needful.