B.K. Behera, J.
1. For proof of a fact, law does not require plurality, but quality of evidence. Evidence is to be weighed and not counted. An order of conviction can be rested on the testimony of a solitary witness if the evidence is clear and cogent and is of an unimpeachable character. Upon hearing Mr. Prasant Mohanty, the learned counsel for the petitioner and Mr. D. P. Sahoo, the learned Standing Counsel, I find that the evidence of the sole witness to the occurrence (P. W. 5) whose house had been set fire to in the evening of the 15th September, 1979 by the petitioner, as alleged, did not deserve credence and Mr. S. K. Panda, the learned Assistant Sessions Judge who tried the petitioner and convicted him under Section 436 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for a period of three years and Mr. P. Jena, the learned Sessions Judge, who heard and dismissed the appeal, had recorded unreasonable findings holding the petitioner guilty of the charge of arson based on the evidence of P. W. 5.
2. What the court is concerned with is the intrinsic, value of the evidence of P. W. 5, She had, in her examination-in-chief, testified that by the time she came out of her house on hearing the sound of breaking of jute sticks, the petitioner had set fire to the roof by burning a jute stick and was setting fire to another place on the roof and when she caught him, the petitioner attempted to run away and in the process, fell down and while escaping from the clutches of P. W. 5. he dealt a kick on the person of P. W. 5. The evidence of P. W. 5 was that she cried out and when the co-villagers and her son (P. W. 6) came she named the petitioner to be the culprit. But in her cross-examination she had stated:
'...We were in our house when the roof of the house caught fire. We also continued to stay on even when flames came out in the roof... I saw the accused first when I caught hold of him a little away from the point where I saw the fire on the roof....'
These statements would lead one to the conclusion that she had not seen the petitioner actually setting fire to the roof of her house.
3. One striking feature of which no due notice had been taken by the courts below was that in the First Information Report (Ext. 1) lodged by P. W. 6, the son of P. W. 5, it had not been stated that P. W. 5, had in fact, seen the petitioner setting, fire to the house or that she had implicated him to be the author of the crime. In the normal course, P. W. 5, would inform P. W. 6 about what she had claimed to have seen him setting fire to the house. No doubt, the First Information Report, strictly speaking, is a previous statement of its maker and it can corroborate or contradict the first informant. But omissions of important facts in the First Information Report effecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. (See AIR 1975 Supreme Court 1026 Ram Kumar Panda v. State of Madhya Pradesh).
4. If the petitioner had not been seen by P. W. 5, setting fire to the home, a belated statement made by her before P. Ws. 1, 3 and 4 (the daughter of P. W. 6) to the effect that the petitioner was the culprit would be of no consequence. P. W. 3 had for the first time deposed in the court regarding the statement of P. W. 5 naming the petitioner to be the author of the crime. Even assuming on the basis of the evidence of P. W. 5. that the petitioner was near about the scene at the time of occurrence, there could at best arise a suspicion regarding his complicity. But suspicion, however grave, cannot lead the proof of guilt.
5. Although P. W. 5, had stated in her evidence that she had been dealt a kick by the petitioner, there was no material to indicate that she had any injury on her person. Her evidence was that the petitioner had fallen down when she tried to catch hold of him. There was no evidence that the petitioner had sustained any injury.
6. In view of these infirmities in the evidence and the improbabilities in the story narrated by P. W. 5, no order of conviction could be recorded and this is a fit case in which this Court should, in its revisional jurisdiction, set at naught the order of conviction recorded by the trial court and maintained by the appellate court. I would allow the revision and set aside the order of conviction and sentence passed against the petitioner.