The conviction under Section 436 of the IPC was set aside due to insufficient evidence proving the intent and dwelling status of the property at issue.

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. 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 illega