Gopal Prasad, J. - (1.)HEARD learned Amicus Curiae for the appellants and learned counsel for the State.
(2.)AWADH Ram, Birbal Ram, Badani Ram and Daya Shankar Ram have been convicted for offence under Section 436/34 I.P.C. and sentenced to undergo rigorous imprisonment for seven years each.
The prosecution case as alleged that while the informant had gone to Arrah Kachahri, his mother and wife were alone in the house on 17. 03. 1986. At about 1 P.M. accused Awadh Ram, Birbal Ram, Badani Ram, Daya Shankar Ram and Sheopujan Ram who are neighbourer came and set fire in a fus house which used for keeping goitha, pumping machine and wooden box etc. Due to setting of fire those articles were burnt and on alarm raised by his mother and wife witnesses came there and they saw the alleged occurrence and also identified the accused persons. It has further been alleged that Awadh Ram sprinkled kerosene oil inside the fus house and then set on fire in the house and other accused were also watching.

On the basis of the statement of the informant, F.I.R. was lodged and after investigation charge sheet was submitted. Cognizance taken and case was committed to the Court of Sessions. Charges were framed. Six witnesses were examined during trial and after considering both oral and documentary evidence order of conviction recorded as stated above.

Learned Amicus Curiae however, contends that I.O. of this case has not been examined. The prosecution case in the Fardbeyan that Awadh Ram sprinkle kerosene oil and set on fire and other appellants were watching and the motive of the occurrence a demarcation case was pending between the parties. The occurrence is alleged to be dated 17. 03. 1986, but the F.I.R. has been lodged on 18. 03. 1986 at the Police Station.

However, the informant P.W. 4 is not eye witness to the occurrence. However, only eye witnesses are P.W. 1 and 2 mother and wife of the informant P.W. 3 and 4 have been turned hostile and have not supported the prosecution case. P.W. 5 is Chowkidar and has stated that he had accompanied along with the informant at the Police Station for institution of the case on the next date and hence this evidence is not material. P.W. 6 is formal witness who has proved the case diary and hence only witness who have come to support the occurrence are P.W. 1 and 2 who are material witnesses.

(3.)P.W. 1 is the mother of the informant supported the prosecution about sprinkle kerosene oil and set on fire. However, she has stated other accused persons were also set on fire on the house. She has also stated that on hulla several people of the village came there and they tried to set off fire. However, she has further stated that a wooden box containing articles kept in that house was burnt and one tin fox was also burnt and there was pumping set also damaged. She has further stated in the western room there was Goitha and Fusa and fire set on western room to the north-south where there is wall. However, she has stated that her statement recorded by the Police after two days of the occurrence and has stated that she had stated before the police that at the time of occurrence she was at her dawarja and four accused persons were set on fire and has stated that pumping machine has burnt. She has further stated that Darogaji has seized the burnt articles.
P.W.2 is wife of the informant. She has supported the prosecution case that Awadh Ram and Birbal Ram have sprinkle kerosene oil and other accused persons were setting on fire by matches. On hulla, people gathered there. She has further stated that the place where setting fire there are house of accused persons at a distance of about one hand and diwar (wall) also same. However, she has stated about setting on fire, but no house in the vicinity was affected. Attention has drawn to this witness that she has stated that it is not fact that she has noted before the Police that Awadh Ram and Birbal Ram, Badani Ram, Sheopujan Ram and Daya Shankar Ram entered into the house along with bottle of kerosene oil. Attention has drawn with regard to her earlier statement she has stated before the Police about occurrence of setting fire by Awadh.

However, only two witnesses P.W. 1 and 2 supported the prosecution case. However, I.O. has not been examined and none of the villagers has come forward to support the prosecution case. The objection evidence about burnt has not been proved. However, P.W. 1 and 2, though, have supported the prosecution case. However, attention has drawn with regard to their earlier statement before the Police and non-examination of the I.O. has caused prejudice to the prosecution case. However, learned trial court proceeds to look into the case diary to fill up the lacuna at non-examination of I.O. The case diary can only be seen for satisfaction but can not be used to fill up the lacuna and evidence required to have been adduced and hence, it is not proper at this stage to see the case diary to fill up lacuna for fill up the evidence.