JUDGMENT :

Ratnaker Bhengra, J :

This appeal is directed against the judgment of conviction and order of sentence dated 06.03.2003 passed in Sessions Case No. 21 of 1996 by learned Additional Sessions Judge, Fast Track Court No. 2, Deoghar, by which the learned court below has convicted the appellants under sections 436/34 of the Indian Penal Code and sentenced them to undergo R.I. for five years and fine of Rs. 2,000/-each and in default of payment of fine simple imprisonment of six months under section 436/34 IPC. It was further ordered that 60 per cent of the fine deposited shall go to the informant of the case. The sentence was ordered to run concurrently.

2. The case of the prosecution, in brief, as per the fardbeyan dated 04.05.1995 of the informant Sukh Deo Jha PW-4 is that on 03.05.1995 at about 10.00 O'clock night the informant after taking dinner was sleeping outside his door due to the heat. At about 01.30 O' Clock night all of sudden when he awoke he saw fire in the house of his villagers Avinash Jha and Girdhari Jha. Informant raised hulla and saw the accused persons Nand Kishore Jha, Vijay Rajhans, Tarun Rajhans alongwith his two unknown associates coming out of the house of said Avinash Jha and Girdhari Jha and running towards the river. The informant and his son Vijay Kumar Jha chased the accused persons raising alarm up to river but the accused fled towards their house through river. On hulla other witnesses also saw the accused persons fleeing away. It is further stated that due to the fire flames the house of the informant, Bam Deo Jha, Kam Deo Jha and Brahma Deo Jha was also damaged. Informant further stated that due to old enmity between the parties incident of fire burning occurred.

3. On the basis of this fardbeyan of the informant Jasidih ( Kunda) P.S. Case No. 69 of 1995 dated 04.05.1995 under section 436/427/34 IPC was registered. After the investigation charge sheet was submitted and accordingly cognizance of the offence was taken and the case was committed to the court of sessions. The accused persons were charged under section 436/34 of IPC and trial was held. At the conclusion of the trial accused persons or the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

4. Prosecution examined altogether five witnesses in support of its case. PW-4 Sukh Deo Jha is the informant of the case. PW-1 Girdhari Jha is the nephew and PW-2 Kamdev Jha and PW-3 Bramha Deo Jha are the brothers of the informant. PW-5 is an advocate clerk, a formal witness. On behalf of the defense one defense witness D.W.-1 was examined and land documents have been marked exhibit from Ext.-'B' to Ext.-'N' on behalf of the defense.

5. P.W.-4 Sukh Deo Jha is the informant of the case. He has stated in his evidence that on 03.05.1995 at about 01.30 O' Clock in the night he was sleeping outside of his house. He woke up on barking of dog and saw fire flames. He ran there and raised hulla. He saw five persons standing there and then they fled away. In fire flames from the house of Avinash Jha, informant identified accused persons Nand Kishore Jha,Vijay Rajhans and Tarun Rajhans. Informant, has proved his signature and signature of Girdhari Jha on the fardbeyan which was marked Ext.-1 and Ext.-1/1 respectively. In his cross-examination informant stated he alongwith Girdhari, Kamdeo Jha, Avinash Jha and Bramha Deo Jha chased the accused person.

6. P.W. 1 Girdhari Jha is the nephew of the informant. He has stated in his evidence that occurrence is of 03.05.1995 at about 01:30 to 02:00 O' Clock night. He was sleeping in his courtyard. On alarm of his uncle Sukh Deo Jha he woke up and came out of his house. He saw the five accused persons fleeing away out of which he recognised accused Nand Kishore Jha,Vijay Rajhans and Tarun Rajhans. He along with his uncle chased the accused persons but they fled away. P.W-1 further stated that due to fire his house and house of Avinash Jha was burnt and articles of his house was also bur