Krushna Chandra Hota Vs. State - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1. he farther found that defence failed to establish that the unsoundnees of mind of petitioner was of such a degree and nature that he was incapable of knowing that the act which he committed was either wrong or contrary to law. firstly, it is contended by him that once a final report after completion of investigation was submitted by the investigating officer, the learned magistrate bad no jurisdiction to call for a chargesheet. in special and exceptional circumstances, the court, in exercise of its revisional powers, is entitled to go into questions of fact where acceptance of the opinion of the courts below is likely to lead to miscarriage of justice or where the conscience of the court is satisfied in the broad interest of justice that the conviction is not sustainable. the appellate court without applying its mind to judge the evidence independently has simply endorsed the finding of the trial court. it will not be safe to rely on the surmise of p.ordera. misra, j.1. the petitioner has been convicted under section 436, i.p.c. and sentenced to undergo rigorous imprisonment for three years.2. the prosecution case, in short, is that a few days before the date of occurrence during the course of a quarrel between the petitioner on the one hand and p. ws. 1 and 4 on the other, the former had threatened to burn the latter's house. it is alleged that on the morning of 20.4.68 when p. w. 1 was absent from home, petitioner pet fire to the roof of the outer bari room of p. w. l's house. hearing the hulla raised by p. w. 2, who claims to have witnessed the action of petitioner, people gathered and extinguished the fire, the only damage having occurred being the burning of the roof to the extent of 3 x 2 cubits. on return home, p. w. 1 being informed about the occurrence proceeded to the p. s. and lodged the f.i.r. after investigation, police submitted a final report, but on a protest petition, the learned magistrate called upon the police to submit a chargesheet, and on filing of the game, took cognizance. petitioner in defence denied the occurrence and his having had taken part in causing any such fire. an alternative defence of unsoundness of mind of the petitioner was also taken.8. the learned assistant sessions judge, who tried the case, on a consideration of the evidence, found that petitioner on the date and at the time of occurrence committed mischief by fire to the residential house of p. w. 1. he farther found that defence failed to establish that the unsoundnees of mind of petitioner was of such a degree and nature that he was incapable of knowing that the act which he committed was either wrong or contrary to law. on these findings, he convicted and sentenced the petitioner, as stated above. on appeal, the learned sessions judge rejected the plea of unsoundness of mind in toto and confirmed the conviction and sentence of the petitioner.4. learned counsel for petitioner has not pressed the plea of unsoundness of mind which was one of the defences taken in the courts below. he has confined his challenge to the conviction and sentence mainly on two grounds. firstly, it is contended by him that once a final report after completion of investigation was submitted by the investigating officer, the learned magistrate bad no jurisdiction to call for a chargesheet. therefore, the whole trial is vitiated and on this ground alone, petitioner is entitled to an acquittal. secondly, it is argued by him that p. w. 2, the only witness on whose evidence prosecution depends to connect the petitioner with the alleged' occurrence, is unworthy of credit judged by any standards and the courts below have committed errors of record, while dealing with his evidence. if his evidence is rejected, it is argued there is nothing else to connect the petitioner with the occurrence. learned counsel appearing for the state, on the other hand, contends that whatever illegality might have occurred in calling for a chargesheet, it is not open to petitioner now to rely on it and challenge the findings of the courts below based on evidence adduced during trial. secondly, it is argued that in a revision, it is not open to re-assess or make a reappraisal of the evidence or consider the credibility or otherwise of any particular witness.5. learned counsel for petitioner in support of his first ground places reliance on the decision of the supreme court reported is : 1968crilj97 , abhinandan jha v. dinesh mishra. the question which arose for decision there was whether the magistrate was competent to call upon the police to submit a. chargesheet after they had seat a report under section 169, criminal p.c. their lordships expressed the principle of law as follows:there is no power, expressly or impliedly conferred, under the code, on a magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the code, that there is no case made out for sending up an accused for trial.learned counsel for the state, while not; disputing the above principle of law, contends that the order of the learned magistrate calling for a chargesheet after submission of the report under section 169, criminal p.c. was no doubt, open to challenge. in the present case, however, he contends that the trial of petitioner and his conviction resulting on such trial on the basis of evidence adduced before the court cannot be vitiated simply on the ground that some illegality or irregularity had occurred at a stage before cognizance was taken. in support of this argument, he places reliance on the following observations of the supreme court in the decision reported in air 1968 sc 1292, sailendranath v. state of bihar.an illegality committed in the course of an investigation does not affect the competence-and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the cage has proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has been caused thereby.in the present case, it has not been pointed out by learned counsel for petitioner that miscarriage of justice has occurred in the course of trial as a result of learned magistrate's order in calling for a chargesheet. therefore, even though an illegality was committed by the learned magistrate in calling for a chargesheet after the police submitted a final report, in the absence of proof of miscarriage of justice thereby, in my opinion, neither the trial nor the result of the trial is vitiated when the case was tried by a court competent to try and proceeded to termination.6. the second ground urged on behalf of petitioner is that p. w. 2, the only witness on whom prosecution relies to connect petitioner with the occurrence, is unvorthy of credit judged by any standards, and if his evidence is rejected, there is no other material to prove that petitioner was the author of the tire or in any other way responsible for it. learned counsel for the state contends that in a revision, the high court should not interfere on a question of fact, and as such, ought not to re-embark on a re-appraisal of the evidence or consider the credibility of any witness or witnesses. it is no doubt true that ordinarily the revisional court does not interfere with the findings of fact on grounds of improper appreciation of evidence or credibility of witnesses. it cannot, however, be said that the power of the high court in revision is limited to questions of law alone. in special and exceptional circumstances, the court, in exercise of its revisional powers, is entitled to go into questions of fact where acceptance of the opinion of the courts below is likely to lead to miscarriage of justice or where the conscience of the court is satisfied in the broad interest of justice that the conviction is not sustainable. so also, where the lower appellate court simply endorses a finding of fact of the trial court without applying its mind and testing it by fundamental principles relating to appreciation of evidence, it justifies interference in revision by going into the evidence.7. it is not disputed that in the present case, the only eye-witness, who claims to have seen the petitioner setting fire to the house, is p. w. 2. the credibility of this witness has been challenged firstly on the ground that he is interested in p. w. 1 and adversely disposed towards petitioner, and secondly, his inconsistent statements in the witness box show that he could not have been an eye-witness to the occurrence. p. w. 2 admittedly is an agitation relation of p. w. 1. though he has also relationship with the father-in-law of petitioner. p. w. 2 also admits that he hag 4 or 5 coconut trees on the boundary between his site and the site of petitioner who claimed one of those trees to be his, the suggestion of petitioner is that there had been some ill-will and dispute between them regarding these cocoanut trees. it is also in evidence that petitioner gave a stroke with shoe to udayanath hota, uncle of p. w 2 when they entered the house of petitioner on the date of occurrence. thus, the evidence of p. w. 2 cannot be considered unbiased or disinterested, a fact not specifically taken note of by the courts below.8. coming to the actual date of occurrence, p. w. 2 claims to have witnessed the act of petitioner in setting fire to the roof of p. w. 1. at the time of occurrence, there was no difficulty about visibility and p. w. 2 claims to have seen it from a very short distance. this being so, it is not reasonable to expect that p. w. 2 would falter or get confused in describing what he actually saw about the manner in which the roof is said to have been set on fire. a perusal of his evidence shows that at different stages he has given different statements about the manner in which petitioner is said to have set fire to the roof. in his chief, he described the manner of setting fire as follows:the accused came to the back house of p. w. 1 from the accused's house and with the help of a match stick caused fire to the back house of the accused to the south-east corner of the roof.if this is correct, petitioner set fire to the roof of his own house which might have spread to p. w. l's house. this is not the prosecution case nor have the courts below taken note of this aspect. in cross-examination, he changed the manner in which petitioner is said to have set fire by eying that accused eat fire to a bundle of straw with a burnt stick and pushed that burnt stick to the roof of the house of p, w. 1. further down in cross-examination, he again changed this version and stated that petitioner first pushed a bundle of straw to the roof of the house and then caused fire to this bundle with a burnt stick. no attempt was made by the prosecution to get these apparent contradictions reconciled by way of re-examination. the courts below, while being conscious of these inconsistencies in the evidence about the manner of setting fire, have ignored the same by saying that the manner of putting questions to the witness appears to have confused him and these inconsistencies are due to such confusion. p. w. 2 is not describing many incidents or numerous acts of petitioner which be claims to have seen, to give scope for confusion. the only fact which he is deposing to, relates to the manner in which petitioner is said to have set fire to the house. the appellate court without applying its mind to judge the evidence independently has simply endorsed the finding of the trial court. the courts below, apart from this evidence, have sought to rely upon certain corroboration in support of it offered in evidence. one circumstance which is said to corroborate p. w. 2's evidence is that two days prior to the date of occurrence petitioner had threatened p. w. 1 and his mother(p. w. 4) during the course of a quarrel to set fire to their house, in the presence of p. ws. 2 and 5. p. ws. 2 and 5 do not support this version. the second item of corroboration is the evidence of p. w. 8, who says that be saw petitioner running away towards his house after the hulla about the fire was made. p. w. 3 has stated that while he was going to the house of p. 'w. 1, he saw petitioner running at a distance of about 10 cubits from the direction of the burnt house towards his house. in his cross-examination, he says that he saw petitioner for the first time in the bari of p. w. 2. so, his statement that he saw petitioner running away from the burnt house which belonged to p. w. 1 is only a surmise. it will not be safe to rely on the surmise of p. w. 8 as a corroborating factor against the petitioner. thus, the evidence of p. w. 2, judged from any point of view, is unworthy of credit and the so-called corroboration relied upon hardly lends support to the prosecution case that petitioner set fire to the house of p. w. 1. in this state of evidence, the conviction of petitioner on the finding that he set fire to the house of p. w. 1 appears to be based more on surmises and suspicion than on proof. hence, such a conviction cannot be sustained.9. in the result, the revision is allowed, the conviction and sentence of the petitioner are set aside and he is acquitted of the charge.

Judgment:
ORDER

A. Misra, J.

1. The petitioner has been convicted under Section 436, I.P.C. and sentenced to undergo rigorous imprisonment for three years.

2. The prosecution case, in short, is that a few days before the date of occurrence during the course of a quarrel between the petitioner on the one hand and P. Ws. 1 and 4 on the other, the former had threatened to burn the latter's house. It is alleged that on the morning of 20.4.68 when P. W. 1 was absent from home, petitioner pet fire to the roof of the outer bari room of P. W. l's house. hearing the hulla raised by P. W. 2, who claims to have witnessed the action of petitioner, people gathered and extinguished the fire, the only damage having occurred being the burning of the roof to the extent of 3 X 2 cubits. On return home, P. W. 1 being informed about the occurrence proceeded to the P. S. and lodged the F.I.R. After investigation, police submitted a final report, but on a protest petition, the learned Magistrate called upon the police to submit a Chargesheet, and on filing of the game, took cognizance. Petitioner in defence denied the occurrence and his having had taken part in causing any such fire. An alternative defence of unsoundness of mind of the petitioner was also taken.

8. The learned Assistant Sessions Judge, who tried the case, on a consideration of the evidence, found that petitioner on the date and at the time of occurrence committed mischief by fire to the residential house of P. W. 1. He farther found that defence failed to establish that the unsoundnees of mind of petitioner was of such a degree and nature that he was incapable of knowing that the act which he committed was either wrong or contrary to law. On these findings, he convicted and sentenced the petitioner, as stated above. On appeal, the learned Sessions Judge rejected the plea of unsoundness of mind in toto and confirmed the conviction and sentence of the petitioner.

4. learned Counsel for petitioner has not pressed the plea of unsoundness of mind which was one of the defences taken in the courts below. He has confined his challenge to the conviction and sentence mainly on two grounds. Firstly, it is contended by him that once a final report after completion of investigation was submitted by the investigating officer, the learned Magistrate bad no jurisdiction to call for a chargesheet. Therefore, the whole trial is vitiated and on this ground alone, petitioner is entitled to an acquittal. Secondly, it is argued by him that P. W. 2, the only witness on whose evidence prosecution depends to connect the petitioner with the alleged' occurrence, is unworthy of credit judged by any standards and the Courts below have committed errors of record, while dealing with his evidence. If his evidence is rejected, it is argued there is nothing else to connect the petitioner with the occurrence. learned Counsel appearing for the State, on the other hand, contends that whatever illegality might have occurred in calling for a chargesheet, it is not open to petitioner now to rely on it and challenge the findings of the Courts below based on evidence adduced during trial. Secondly, it is argued that in a revision, it is not open to re-assess or make a reappraisal of the evidence or consider the credibility or otherwise of any particular witness.

5. learned Counsel for petitioner in support of his first ground places reliance on the decision of the Supreme Court reported is : 1968CriLJ97 , Abhinandan Jha v. Dinesh Mishra. The question which arose for decision there was whether the Magistrate was competent to call upon the police to submit a. chargesheet after they had seat a report under Section 169, Criminal P.C. Their Lordships expressed the principle of law as follows:

There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial.

learned Counsel for the State, while not; disputing the above principle of law, contends that the order of the learned Magistrate calling for a chargesheet after submission of the report under Section 169, Criminal P.C. was no doubt, open to challenge. In the present case, however, he contends that the trial of petitioner and his conviction resulting on such trial on the basis of evidence adduced before the Court cannot be vitiated simply on the ground that some illegality or irregularity had occurred at a stage before cognizance was taken. In support of this argument, he places reliance on the following observations of the Supreme Court in the decision reported in AIR 1968 SC 1292, Sailendranath v. State of Bihar.

An illegality committed in the course of an investigation does not affect the competence-and jurisdiction of the Court for trial and where cognizance of the case has in fact been taken and the cage has proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has been caused thereby.

In the present case, it has not been pointed out by learned Counsel for petitioner that miscarriage of justice has occurred in the course of trial as a result of learned Magistrate's order in calling for a chargesheet. Therefore, even though an illegality was committed by the learned Magistrate in calling for a chargesheet after the police submitted a final report, in the absence of proof of miscarriage of justice thereby, in my opinion, neither the trial nor the result of the trial is vitiated when the case was tried by a Court competent to try and proceeded to termination.

6. The second ground urged on behalf of petitioner is that P. W. 2, the only witness on whom prosecution relies to connect petitioner with the occurrence, is unvorthy of credit judged by any standards, and if his evidence is rejected, there is no other material to prove that petitioner was the author of the tire or in any other way responsible for it. learned Counsel for the State contends that in a revision, the High Court should not interfere on a question of fact, and as such, ought not to re-embark on a re-appraisal of the evidence or consider the credibility of any witness or witnesses. It is no doubt true that ordinarily the revisional Court does not interfere with the findings of fact on grounds of improper appreciation of evidence or credibility of witnesses. It cannot, however, be said that the power of the High Court in revision is limited to questions of law alone. In special and exceptional circumstances, the Court, in exercise of its revisional powers, is entitled to go into questions of fact where acceptance of the opinion of the Courts below is likely to lead to miscarriage of justice or where the conscience of the Court is satisfied in the broad interest of justice that the conviction is not sustainable. So also, where the lower appellate Court simply endorses a finding of fact of the trial Court without applying its mind and testing it by fundamental principles relating to appreciation of evidence, it justifies interference in revision by going into the evidence.

7. It is not disputed that in the present case, the only eye-witness, who claims to have seen the petitioner setting fire to the house, is P. W. 2. The credibility of this witness has been challenged firstly on the ground that he is interested in P. W. 1 and adversely disposed towards petitioner, and secondly, his inconsistent statements in the witness box show that he could not have been an eye-witness to the occurrence. P. W. 2 admittedly is an agitation relation of P. W. 1. though he has also relationship with the father-in-law of petitioner. P. W. 2 also admits that he hag 4 or 5 coconut trees on the boundary between his site and the site of petitioner who claimed one of those trees to be his, The suggestion of petitioner is that there had been some ill-will and dispute between them regarding these cocoanut trees. It is also in evidence that petitioner gave a stroke with shoe to Udayanath Hota, uncle of P. W 2 when they entered the house of petitioner on the date of occurrence. Thus, the evidence of P. W. 2 cannot be considered unbiased or disinterested, a fact not specifically taken note of by the courts below.

8. Coming to the actual date of occurrence, P. W. 2 claims to have witnessed the act of petitioner in setting fire to the roof of P. W. 1. At the time of occurrence, there was no difficulty about visibility and P. W. 2 claims to have seen it from a very short distance. This being so, it is not reasonable to expect that P. W. 2 would falter or get confused in describing what he actually saw about the manner in which the roof is said to have been set on fire. A perusal of his evidence shows that at different stages he has given different statements about the manner in which petitioner is said to have set fire to the roof. In his chief, he described the manner of setting fire as follows:

The accused came to the back house of P. W. 1 from the accused's house and with the help of a match stick caused fire to the back house of the accused to the south-east corner of the roof.

If this is correct, petitioner set fire to the roof of his own house which might have spread to P. W. l's house. This is not the prosecution case nor have the courts below taken note of this aspect. In cross-examination, he changed the manner in which petitioner is said to have set fire by eying that accused eat fire to a bundle of straw with a burnt stick and pushed that burnt stick to the roof of the house of P, W. 1. Further down in cross-examination, he again changed this version and stated that petitioner first pushed a bundle of straw to the roof of the house and then caused fire to this bundle with a burnt stick. No attempt was made by the prosecution to get these apparent contradictions reconciled by way of re-examination. The courts below, while being conscious of these inconsistencies in the evidence about the manner of setting fire, have ignored the same by saying that the manner of putting questions to the witness appears to have confused him and these inconsistencies are due to such confusion. P. W. 2 is not describing many incidents or numerous acts of petitioner which be claims to have seen, to give scope for confusion. The only fact which he is deposing to, relates to the manner in which petitioner is said to have set fire to the house. The appellate court without applying its mind to judge the evidence independently has simply endorsed the finding of the trial court. The courts below, apart from this evidence, have sought to rely upon certain corroboration in support of it offered in evidence. One circumstance which is said to corroborate P. W. 2's evidence is that two days prior to the date of occurrence petitioner had threatened P. W. 1 and his mother(P. W. 4) during the course of a quarrel to set fire to their house, in the presence of P. Ws. 2 and 5. P. Ws. 2 and 5 do not support this version. The second item of corroboration is the evidence of P. W. 8, who says that be saw petitioner running away towards his house after the hulla about the fire was made. P. W. 3 has stated that while he was going to the house of P. 'W. 1, he saw petitioner running at a distance of about 10 cubits from the direction of the burnt house towards his house. In his cross-examination, he says that he saw petitioner for the first time in the bari of P. W. 2. So, his statement that he saw petitioner running away from the burnt house which belonged to P. W. 1 is only a surmise. It will not be safe to rely on the surmise of P. W. 8 as a corroborating factor against the petitioner. Thus, the evidence of P. W. 2, judged from any point of view, is unworthy of credit and the so-called corroboration relied upon hardly lends support to the prosecution case that petitioner set fire to the house of P. W. 1. In this state of evidence, the conviction of petitioner on the finding that he set fire to the house of P. W. 1 appears to be based more on surmises and suspicion than on proof. Hence, such a conviction cannot be sustained.

9. In the result, the revision is allowed, the conviction and sentence of the petitioner are set aside and he is acquitted of the charge.