Judgment

SHELAT, J.:- This appeal, by certificate granted by the High Court of Allahabad, is against its order dismissing the criminal revision filed by the appellants and refusing to interfere with the order passed by the Sessions Judge setting aside the order of discharge passed by the committing Magistrate.

2. The facts leading to the appeal may briefly be stated. One Naubat Singh of village Nagla Shekhoo, who owned certain lands, died in August 1963. Some three years prior thereto he had sold part of his land to complainant Jai Singh who was married to Raj Kali, who, according to the prosecution, was the only heir and legal representative of the said Naubat Singh. On the death of Naubat Singh, Raj Kali entered into possession of the rest of the land as his sole heir. The appellants (the original accused), however, put up a claim that Kasturi, the wife of the appellant Sardar Singh, was also the daughter of Naubat Singh, and therefore, entitled to a half share in the property left by Naubat Singh. Legal proceedings ensued as a result of these rival claims and February 13, 1964 was the date of the hearing.

3. According to the complainant Jai Singh, at about 11.30 P. M. on that date he heard some sound in consequence of which he woke up and saw with the aid of his torch the four appellants setting fire to the thatch of his Bangi. On his raising an alarm, his wife, his brother, Atar Singh, and several neighbours came to the scene of the offence and the appellants on seeing them ran away. This was the gist of his case as incorporated in his complaint. The appellants defence was twofold; that the place which was said to have been burnt down was a cattle-shed and not a residential house, and that they had been falsely implicated on account of the previous hostility between them and the complainant and the members of his party.

4. During the committal proceedings both the sides examined a number of witnesses. At the instance of the appellants the Magistrate also made a local inspection and placed his report thereof on record. The complaint against the appellant being under Section 436 of the Penal Code, the case was triable by the Sessions Court, if the Magistrate were to commit the case on being satisfied that there were sufficient grounds to do so.

5. The Magistrate considered the evidence led before him in great details and in an elaborate judgment observed: (1) that of the six witnesses examined by the complainant, three, namely, the complainant, his wife and his brother, belonged to the same family, (2) that the remaining three eye-witnesses were chance witnesses (3) that the complainant had failed to examine any witness from his immediate neighbourhood., (4) that his inspection revealed that the Cher, which was set fire to, was a cattle-shed and that the complainant actually resided in a house at a distance of about 50 paces from that place, (5) that the houses of two of the prosecution witnesses, Badri Prasad and Gokul Singh, were at a distance of 304 and 179 paces away, while that of the third witness, Mantri, was situated at a distance of one and a half furlong from the scene of the offence, (6) that Badri Prasad and Gokul had given evidence against the appellants in an earlier litigation and were, therefore, interested witnesses, (7) that the name of Mantri did not figure either in the F. I. R. or in the complaint filed by the complainant, nor in the list of witnesses filed in the inquiry under Section 202 of the Code of Criminal Procedure, and that therefore, he was made a witness as an after-thought, (8) that the defence witnesses, on the other hand, had their houses near the place of the alleged offence, (9) that the defence witnesses were independent witnesses, (10) that though the complainant s Cher had admittedly caught fire, none of his witnesses claimed that he was the appellants actually setting fire to it, that their version that they saw them near the place or running away therefrom was unnatural, particularly the