Mukherjee, J. - (1.) In Sessions Case No. 122 of 1989 on the file of the Additional Sessions Judge, Fourth Court, Thane, seven persons were arraigned for rioting, five murders and other related offences. While acquitting two of them, the trial Judge convicted the other five under Sections 147, 342/149, 440/34 and 302/149, I. P. C. and sentenced them to different terms of imprisonment, including life, and fine. Aggrieved thereby the five convicts (who were arrayed as A1 to A5 in the trial Court) preferred appeals in the High Court which were dismissed. Assailing the dismissal of their appeals three of them, namely A2, A3 and A4 have filed these appeals which have been heard together and this judgment will dispose of them.
(2.) Briefly stated the prosecution case is as under:- (a) In the Waldhuni area of Kalyan City the Railways own a number of buildings, rooms of which are allotted to its employees. Eknath Brahmane (P. W. 4), is one of such employees who was allotted room No. 7 on the ground floor of Building No. 1003. That room was used by the two sons of Eknath, namely, Manohar and Sanjay as their study; and Eknath along with his other family members lived in a nearby chawl; (b) Two and a half months prior to the incident with which we are concerned in these appeals, Eknath and his friend Rajesh were arrested for attempting to commit the murder of Baksh Jamalkhan Pathan, brother of Amir Jamal Khan Pathan (A1) and, a week before the incident, they were released on bail. Since the attempt was made to commit the murder of his brother A1 bore a grudge against them. (c) In the night of October 20, 1988 Sanjay along with his brother Manohar and friends Rajesh, Harshad and Romi were sleeping in their study. At or about 3.45 a.m. they woke up on hearing some noise from outside the window and found their beds splashed. They immediately got up and saw the accused persons pouring petrol inside the room through the window. Thereafter they set the room on fire by throwing an ignited match stick and left bolting the door from outside. (d) A little later when Kanhayalal, a regular milk supplier to the residents of the railway quarters, reached there he detected some fire in room No. 7. He immediately sent information to the family members of Rajesh and to Eknath. On receiving that information they rushed there and found the room locked from outside and fire inside. Eknath unlocked the room and saw Sanjay, Harshad and Romi lying dead on the floor of the room and Rajesh and Manohar in the bathroom in a critical condition. All of them had burn injuries on their persons. (e) Eknath immediately reported the incident to the Police Station over telephone and arranged to send Manohar and Rajesh to Ulhasnagar Central Hospital. On receiving the telephonic message Inspector Nanavade reached the spot and having learnt that the condition of Manohar and Rajesh was deteriorating issued direction to S. I. Tulshiram (P. W. 20) to get their statements recorded by a Magistrate. Services of Dr. Prem Narayan Talareja (P. W. 16), a Special Executive Magistrate, were accordingly requisitioned. He went to the hospital and recorded their statements (Exhs. 59 and 60). A formal complaint of Rajesh was also recorded by S. I. Shripat Malache (P. W. 20) (sic) and on that complaint Police registered a case and took up the investigation. As the condition of Manohar and Rajesh was serious, they were transferred to K. E. M. Hospital, Bombay where the former died on October 26, 1988 and the latter on the following day. On completion of investigation police submitted charge-sheet and in due course the case was committed to the Court of Session.
(3.) At the outset, we may point out that the prosecution case, to the extent it sought to prove that the above named five boys were set on fire while they were sleeping inside room No. 7 of Railway building No. 1003 and that owing to burn injuries they met with their death stands proved by overwhelming evidence on record. Since, this part of the prosecution case was not challenged by the accused persons in the Courts below we need not detail or discuss the evidence adduced in proof thereof.;