JUDGMENT : SHAMIMA JAHAN, J. Heard Mr. L. R. Mazumder, learned counsel appearing for the appellant. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor for the State of Assam. 2. This is an appeal filed under Section 374 (2), of the Cr.P.C, 1973, assailing the judgment and order dated 22/05/2013, passed by the learned Additional Sessions Judge, Cachar, in Sessions Case No. 181/2010, by which the appellant was convicted under Section 436 of the IPC and was sentenced to Rigorous Imprisonment for 1 year with a fine of Rs.3,000/- and in default to undergo 1 month imprisonment. FACTS 3. The fact of the case in nutshell is that the informant, namely Md. Saraf Uddin, lodged an ejahar before the officer-in-charge of Jirighat, Police Station, Cachar, Assam, stating inter-alia that on 12/8/2006 at around 3.00 AM, he saw his brother's house being set on fire. On seeing this, he rushed to his brother's house. And while going, he saw the petitioner running from his brother's house and descending from the hillock and there the informant caught him saying that they should douse the fire, and as such, the informant took appellant to the house and tried to douse the fire. However, the informant stated that the appellant was simply standing there and was not extinguishing the fire, and on the said conduct, the appellant was suspected to have set the house on fire. It was further stated that the house, including the shop, its goods were burnt including ducks, fowls, and goats were completely gutted in the incident of fire. It was also alleged that there was a dispute with the appellant over a matter of road. 4. On receiving the ejahar, the police registered the case under Section 436 IPC as Jirighat P.S case No. 36/2006. The police, on completion of the investigation, submitted charge sheet against the appellant under of the . On completion of other necessary requirements of law, the charge was framed against the appellant on 24/09/2016 by the learned Sessions Judge, Cachar, Silchar under of the . 5. During the trial, the prosecution examined 5 (five) witnesses. And thereafter, the accused was examined under Section 313 of the Cr.P.C, and on completion of the trial, the appellant was convicted as mentioned above. 6. The police during their investigation had seized various articles from the place of occurrence, which was exhibited as Exhibit No. 2. 5. During the trial, the prosecution examined 5 (five) witnesses. And thereafter, the accused was examined under Section 313 of the Cr.P.C, and on completion of the trial, the appellant was convicted as mentioned above. 6. The police during their investigation had seized various articles from the place of occurrence, which was exhibited as Exhibit No. 2. The police have also exhibited some other seized articles vide Exhibit No. 3. SUBMISSIONS 7. Mr. L.R Mazumdar, learned counsel for the appellant, submits that nobody had seen the appellant setting the house on fire, and the circumstances that are relied on by the trial Court are not acceptable in the facts of the present case. He submits that a person who sets a house on fire will never come back to the place of occurrence or stand before the scene and will try to escape therefrom as early as possible. The appellant had not tried the same, which shows his conduct under Section 8 of the Evidence Act, being not the perpetrator of the crime. He further submits that the P.W.1 had stated that there are 5-6 houses in the neighbourhood, but none of the inhabitants of the said houses were examined, and that only the relatives were examined in the instant case. He as such submits that non-examination of vital witness goes against the present conviction. He also submits that the investigating officer was not examined, which caused prejudice in the instant case. 8. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor for the State, submits that the appellant was seen coming from the shop house which was set on fire and the time was 3:00 AM. And the same is very unusual for an innocent person to be there at that juncture. He further submits that P.W.4 had seen the appellant running away from the place of occurrence from his room after the house was set on fire. He also submits that the case is of a grave nature as the seizure list shows that a number of articles were gutted in the fire, resulting in loss to the victim. Further, he submits that during his examination under Section 313 Cr.P.C, the appellant had not denied his presence at the place of occurrence. He also submits that the case is of a grave nature as the seizure list shows that a number of articles were gutted in the fire, resulting in loss to the victim. Further, he submits that during his examination under Section 313 Cr.P.C, the appellant had not denied his presence at the place of occurrence. And also submits that in the present case, non-examination of investigating officer is not fatal to the case, as all the prosecution witnesses have given clear statement to the effect that they have seen the appellant running away from the place of occurrence. And that the circumstances put forth by the trial Court are well established in the eyes of law. EVIDENCE 9. P.W.1 is the informant and he stated before the Trial Court that his house was at a distance of 20 Nals from the shop house of his brother, Safique Uddin Laskar i.e. the place of occurrence. He further stated that on the night of occurrence, there was an earthquake due to which, he got up from his sleep, and at that juncture he saw his brother's house on fire, and that he rushed to his brother's house and on his way he saw appellant coming down from the house of his brother, and as such he caught the appellant and took him to the house of his brother. He thereafter stated that his nephew, Ainul Hussain, P.W No. 4, Jamil Ahmed, P.W No. 5, his son, who were in the house of his brother told him that the appellant had set fire on the house and was fleeing there from. This witness further stated that he lodged the ejahar before the police and that the police had seized various articles from the house. 10. During his cross-examination, this witness stated that there were 5-6 houses in the neighbourhood of his brother and that it is not a fact that he did not state before the police that his nephew, P.W No. 5, and his son told him that the appellant had set the house on fire. He also stated during this cross-examination that there was dispute over path between him and the appellant. 11. P.W No. 2 is the younger brother of the informant. He also stated during this cross-examination that there was dispute over path between him and the appellant. 11. P.W No. 2 is the younger brother of the informant. And he stated in his examination before the trial Court that on the night of occurrence, while he was sleeping in his house, an earthquake happened due to which he got up from his sleep and on hearing hue and cry coming from the shop house of the victim, he went out and his nephew P.W No. 4 who also came out from his house, told him that Appellant had set the house on fire and ran away. He stated that other persons have also told him that Appellant had set the house on fire. And that in the meantime he saw appellant coming to his house and apprehended the appellant and handed him over to police. 12. This witness was cross-examined, and during the same he stated that it is not a fact that he had not stated before police that P.W.4 told him that appellant had set the house on fire. And that he also denied the fact that appellant along with other neighbours had gone to extinguish the fire with the further denial that appellant was handed over to police due to previous grudge. 13. P.W. No.3 states before the trial Court that he along with P.W. No. 4 and one Jainul Hoque, were sleeping in their house, and that hearing hue and cry, he got up and saw his uncle, that is the appellant, going away from the house by setting the same on fire. He stated that in the meantime his uncle, that is the informant, and some others apprehended the appellant and brought him to their house. And further, that evidence was given in a criminal case against the appellant, and as such, he submits that appellant had set fire in their house. 14. During his cross-examination, this witness stated that the house which was set on fire had 3 rooms, one being the shop, and in the other they were sleeping in the room adjacent to the shop room. 15. P.W. No.4 is Md. 14. During his cross-examination, this witness stated that the house which was set on fire had 3 rooms, one being the shop, and in the other they were sleeping in the room adjacent to the shop room. 15. P.W. No.4 is Md. Ainul Hussain who stated that the informant is his uncle and that on the night of occurrence, he and others were in the house of his maternal uncle, and were watching TV in the room, and that earthquake happened and he woke up. And on coming out of his room, he saw the shop house of his uncle Safique Uddin being set on fire. He further stated, that the door of their room was closed from outside and that he and others somehow came out by breaking the door and saw the appellant running away from the place of occurrence and that his maternal uncle, that is the informant, detained the appellant and brought to the house of the informant, and that the appellant was handed over to the police. 16. In his cross-examination, he said that he did not see who had set fire in the shop house and that they did not handed over the appellant due to some previous grudge. 17. P.W. 5 is Md. Jamil Ahmed, who was along with Ainul and others sleeping in the room adjacent to the shop room. He states that on seeing the fire, when he raised hue and cry, after coming out from the room by breaking the door saw a person running away. He further stated that his uncle, that is the informant, whose house was adjacent to the place of occurrence, coming towards his house and bringing the appellant along with him, who was however detained and was handed over to the police. This witness, during his cross-examination, stated that he did not see who set fire on the shop house. This witness further denied that he and others had handed over the appellant to police on some previous grudge. 18. These were the prosecution evidence. Thereafter, the appellant was examined under Section 313 of the Cr.P.C, and all the incriminating circumstances were put to the appellant, to which he replied as false. He further denied of setting fire. He rather, in his defence, stated that he went to the place of occurrence to extinguish the fire. 18. These were the prosecution evidence. Thereafter, the appellant was examined under Section 313 of the Cr.P.C, and all the incriminating circumstances were put to the appellant, to which he replied as false. He further denied of setting fire. He rather, in his defence, stated that he went to the place of occurrence to extinguish the fire. On completion of the evidence, the learned trial Court, by formulating 5 circumstances held that it was the appellant who is guilty of the offense under Section 436 of the IPC and was convicted and sentenced as mentioned above. The 5 circumstances are mentioned herein below:- I) Immediately after the fire was broken out, accused person was seen by all the witnesses-PW1, PW3, PW4 and PW5 to flee from the place of occurrence. II) PW1 Saraf Uddin Laskar apprehended the accused Hasim Uddin, noticing him to come down from the house of Safique Uddin, which was burning at that time. III) His suspicious presence at that late hour of the night at the P.O and his attempt to flee from the scene of occurrence, immediately after the fire was broken out. IV) Attempt of the accused to suppress the actual reason behind his presence. His plea of going there to help in extinguishing the fire, has been proved false. V) It is also evident that there was previous enmity in between the parties and hence the accused had the motive to set fire in the house of said Safique Uddin. 19. The first circumstance that was taken into account by the learned trial Court that immediately after the fire broke out, the appellant was seen by all the witnesses, that is P.W.1, P.W.3, P.W.4, and P.W.5, fleeing from the place of occurrence does not show the complicity. However, it is noticed in the evidence set forth by the said witnesses, which are as follows:- P.W.1 stated that when due to earthquake he woke up from his sleep he saw his brother's shop house on fire. And seeing the scene, he rushed to the place of occurrence, and he saw the applicant coming down from the house of his brother. This witness further stated that he caught the appellant and took him to the house of his brother. And seeing the scene, he rushed to the place of occurrence, and he saw the applicant coming down from the house of his brother. This witness further stated that he caught the appellant and took him to the house of his brother. Similarly, other witnesses, that is P.W.3, P.W.4, and P.W.5, had also stated that when they woke up due to the earthquake, they saw fire engulfing the shop house of Safique Uddin. No one had said that immediately on setting the shop house on fire, they saw this scene. Moreover, P.W.4 and P.W.5 had stated that the room they were staying in was locked from outside and that they had to break the door of their room to reach the place of occurrence. As such, seeing at that juncture the appellant coming down from the house of the victim cannot be a conclusive factor that it was the appellant who had set the house on fire, because neither the appellant was seen immediately on setting the house on fire nor the time is so short that P.W.4 and P.W.5 after breaking the door and on coming out of the room and seeing the appellant going there from. It is a common fact that a person who sets a house on fire will not wait for long at the place of occurrence, and that he would escape as early as possible. 20. The second circumstance, that P.W.1 had apprehended the appellant, is also not correct inasmuch as P.W. No. 1 had stated in his evidence that he had seen the appellant coming down from the shop house and took him back to the shop house to extinguish the fire. This witness further stated that it was P.W. 4 and others who told him that the appellant had set the house on fire. He, along with others, apprehended the appellant and handed over to the police. 21. The third circumstance, that the appellant was trying to flee from the place of occurrence immediately after the fire broke out, is again incorrect to the extent that nobody had said in clear terms as to when did the fire broke out. All the witnesses have seen when the house was burning on fire. 22. 21. The third circumstance, that the appellant was trying to flee from the place of occurrence immediately after the fire broke out, is again incorrect to the extent that nobody had said in clear terms as to when did the fire broke out. All the witnesses have seen when the house was burning on fire. 22. The fourth circumstance too, cannot be accepted the way it is being set forth, inasmuch as a person who sets a house on fire will not keep standing there after the villagers gather. He would somehow try to escape from the said place. But P.W.1 stated that the appellant was not trying to extinguish the fire, but he was standing there and then finally he was handed over to the police. 23. The fifth circumstance cannot alone lead to the actions of the appellant unless it is corroborated by other evidences on record in its true perspective. Further, it is seen that investigating officer was not examined in the instant case. There are few contradictions which were placed before P.W.1 and P.W.2, to the effect that P.W.1 had stated in his cross-examination that it is not a fact that he did not state to police that P.W.4 and others have told him that appellant had set fire to the house of Safique Uddin. P.W.2 had also made the same statement during his cross-examination. However, the said contradictions were not put to the investigating officer so that the contradiction stands proved, who was not even examined in the instant case. There is no reason, also cited by the prosecution, as to why the police officer is not examined. And it is a settled position of law that in certain circumstances, the non-examination of a police officer may result in being fatal to the prosecution case. 24. In view of the said analysis, this court deems it fit that the judgment and order dated 22/05/2013, passed by learned Additional Sessions Judge, Cachar in Sessions Case No. 181/2010, by which the appellant was convicted and sentenced under Section 436 of the IPC , is set aside and quashed. 25. Appellant is acquitted from the said case. 26. Bail bonds stands cancelled. 27. Send back the LCR.