Sethi, J. - (1.)Contending that the prosecution had failed to prove the presence of all the appellants and the existence of common object within the meaning of Section 149 of the Indian Penal Code, the learned counsel for the appellants has argued that except appellant Manoj Kumar no other accused could be convicted or sentenced for the death of the deceased person. It is submitted that even if the appellants are proved to be present on spot when the occurrence took place, they cannot be held guilty for the commission of any offence as they were not proved to be sharing any common object but were only by-standers. It has been further argued on behalf of some appellants that the prosecution witnesses being interested were not reliable and the Courts below wrongly relied upon their testimony to convict and sentence the appellants.
(2.)The facts giving rise to the filing of the present appeals are that on 23rd July, 1994 at about 2.00 a.m. the appellants accompanied by 300-400 persons, armed with deadly weapons like guns, attacked the house of Ganesh Singh in village Amarpur. Bholi Singh was shot dead and Newlesh Singh, Shiv Narain Singh, Kedar Singh, Sanjay Singh and Ajay Kumar were burnt alive inside the room where they were hiding. According to the First Information Report, the informant, namely, Ganesh Singh (PW-5) along with other members of the family had slept on the upper floor of his house in open. At about 1.30 a.m. in the night there was some drizzling whereupon female members of the family came down to the ground floor of the house and male members moved inside three separate rooms on the southern side of the upper floor of the house. In the western room facing north Newlesh Singh, Sanjay Singh, Ajay Kumar, Kedar Singh, Shiv Narain Singh and Bholi Singh went to sleep. The informant (PW-5) himself occupied the middle room and in the room on the eastern side his nephew Dhanju Kumar (PW-1) slept. After about half an hour, the informant heard sounds of firing from northern side of the roof of his house and he got up. He heard one person saying that Newlesh should come out and surrender as the person speaking claimed to be the officer-in-charge of the police station. He heard Newlesh saying that if the person seeking surrender was the officer-in-charge of the police station, he should come to the front door of the house. Ganesh Singh (PW-5) further stated that he saw some fire like substance and then raised an alarm that the extremists had arrived in Khakhi dress. The culprits set the room on fire in which Newlesh was sleeping along with others. The fire was set with the help of petrol bombs. The occurrence was seen by the informant through a hole in the room where he was sleeping. Out of the mob of 300-400 persons, he identified 19 persons in the light of torch flashed by fire in the room including the appellants. All the aforesaid persons were named in his statement. In the entire process about 300-400 rounds of firing were made terrifying the whole of the locality. The motive behind the commission of the crime was stated to be the enmity of Manoj Kumar with the family of the informant.
(3.)After completion of the investigation the prosecution filed the charge-sheet in the trial Court against 16 persons including the appellants. To prove its case the prosecution examined 8 witnesses. During the pendency of the trial one of the accused, namely, Mani Singh (A-16) died. Out of the remaining 15 accused persons Ram Binay Singh (A-4), Bageshwari Sharma (A-7) and Divya Kumar Madhu (A-15) were acquitted by the trial Court. A-2, namely, Hirdaya Singh alias Dhirendra Singh and Manoj Kumar Gautam (A-11) were convicted under Section 302 of the Indian Penal Code and sentenced to death by the trial Court. The other accused were convicted for the commission of offences under Section 302 read with Section 149, IPC and sentenced to life imprisonment. The accused were also convicted for the commission of offences under Sections 148, 436 and 120-B of the Indian Penal Code and Section 27 of the Arms Act but no separate sentences were awarded to them. Not satisfied with their conviction and sentences, the accused persons filed Criminal Appeal Nos. 464 of 1997, 517 of 1997, 528 of 1997 and 24 of 1998. All the appeals, along with Death Reference No. 6 of 1997 were disposed of by the common judgment impugned in these appeals. The conviction of the appellants was upheld but the sentence awarded to Hirdaya Singh alias Dhirendra Singh (A-2) and Manoj Kumar Gautam (A-11) was commuted from death sentence to imprisonment for life. Not satisfied even with the judgment of the High Court, the present appeals have been filed by the convicted accused persons.