Anjana Prakash, J. - (1.)THE Appellants have been convicted under Section 436/34 IPC and sentenced to RI for ten years as also under Section 429 IPC and sentenced to three years by a judgment dated 24.08.1994/25.08.1994 in S. Tr. No 183 of 1992/124 of 1992 passed by 3rd Additional Sessions Judge, Aurangabad.
(2.)THE prosecution case is that on 22.03.1992 while the informant was in his house the accused persons came and burnt his house upon which he came out and saw the Appellants running away from the place of occurrence.
The prosecution examined ten witnesses in all out of whom P.W. 1, P.W. 8 and P.W. 9 the material eye witnesses whereas P.W. 2, P.W. 3 and P.W. 6 are corroborative witnesses. However, these witnesses have not seen the Appellants in the house of the informant nor the name of the Appellants disclosed by any one. P.W. 4 and P.W. 5 have been tendered for cross -examination.

(3.)ON going through the evidence of the witnesses the factum of occurrence even if accepted the participation of the Appellants appears doubtful. Admittedly, there was enmity between the parties over possession of the land for which a Title Suit was pending between them and it is not believable that the Appellants could have been seen by the informant when he was sleeping inside since admittedly the occurrence is said to have been taken place at night.