The conviction for arson was overturned due to inconsistencies in witness testimonies, granting the appellant the benefit of doubt.

Judgment :

S.S. Mishra, J.

The present Criminal Appeal is preferred by the convict Chhota @ Gouranga Behera and Madan Behera jointly questioning the judgment and order dated 18.04.1996 passed by the learned Additional Sessions Judge, Jajpur in Sessions Trial No. 59/4 of 1995, whereby the appellants are convicted for offence punishable under Section 436 of IPC and on that count each of them were sentenced to undergo R.I. for two years.

During pendency of the present appeal, the appellant no.1-Chhota @ Gouranga Behera expired. Therefore, vide order dated 31.07.2025, the appeal qua appellant no.1 stood abated, in absence of any application under Section 394 Cr.P.C. moved by his legal heirs or next friend. Hence, the present appeal is confined to the appellant no.2.

2. Heard Ms. Sartika Das, learned counsel for the appellant and Ms. Shiva Mohanty, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that the accused persons have got previous enmity with the family of the informant (P.W.1) and P.W.5 (Khageswar Behera). On 14.12.1992 noon, the accused Subodh and Madan made some filthy comments to the wife of the nephew of the informant. The informant made objection to such misbehaviours. Thereafter, the accused persons had given threats for setting their house on fire. At 2.00 P.M. on that day, the accused persons set fire to their house and subsequently they pelted stones at them.

4. On the basis of the aforesaid allegations, police registered the case for the offence punishable under Sections 436 /336/34 of IPC. After investigation, charge sheet was filed and charges were framed. On the stance of denial and claim of trial, the appellants were put to trial.

5. The prosecution in order to bring home the charges, examined as many as eight witnesses.

6. In the present case, initially nine accused persons were put to trial after framing of charges against them for the offences under Sections 436 /336/34 of IPC. On trial, all the accused persons have been acquitted of the charges, except the present appellant and the deceased appellant. Accordingly, they were also sentenced. The learned trial court after analyzing the evidence on record, returned the following findings:-

“7. It is evident from the statements of the witnesses that the roof of the dwelling house and cow-shed of P.Ws.1 and 5 (P.W.1 is the wife of P.W.5) had been burnt. P.Ws.1 and 2 make statement that accused Madan and Gourang set fire the house. P.W.2 entangles accused Subodh besides the above two accused persons in setting the house on fire. But both the witnesses have entangled and made positive statements against accused Madan and Gourang about setting of fire. As P.W.1 does not make statement against accused Subodha, his (accused Subodh) involvement in setting fire of the house, is said to have not been proved beyond doubt.

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10. As regard delay, it needs mention that P.W.1 in her statement at paragraph-6 states that in the very night of occurrence police came and she was examined and the F.I.R. was scribed in the very night. Of course in the said paragraph she made a statement that in the next morning she lodged the F.I.R. in the police station. When that paragraph as a whole is read that in the night of occurrence police case, the F.I.R. was scribed and she was examined, obviously her statement that in the next morning she lodged F.I.R. is outcome of a confusion. The F.I.R. (Ext.1) reveals that in the very night around 7.30 P.M. it was lodged and such is also the statement of the I.0. The defence takes into evidence an endorsement of the I.0. (P.W.8) is