Natarajan, J. - (1.) The appellant Sukhram and his cousin one Gokul were convicted by the Sessions Judge, Dewas under Section 302 read with Section 34 I.P.C. and under Section 436 read with Section 34 I.P.C. and sentenced to imprisonment for life and concurrently to undergo rigorous imprisonment for 7 years for the respective convictions. On appeal, the High Court confirmed the convictions and sentences awarded to the appellant but gave the benefit of doubt to accused Gokul and acquitted him of both the charges. The appellant has preferred this appeal by special leave against the judgment of the High Court confirming the convictions and sentences awarded to him.
(2.) The prosecution case briefly stated was that Gokul and the appellant bore a grudge against P.W. 1 Gendalal because of his refusal to return a sum of Rs. 400/- collected as fine from Gokul by the caste panchayatdars and left in deposit with P.W. 1 Gendalal. It would appear that about four years before the incident which took place on the night of 1/2 May, 1979, the panchayatdars chastised Gokul for having illicit intimacy with his daughter-in-law and imposed on him a fine of Rs. 400/-. The fine amount was entrusted to P.W. 1 Gendalal with instructions to retain the amount till such time the panchayatdars asked him to return the amount to Gokul. On some occasions before the incident, Gokul and the appellant demanded return of the fine amount .but P.W. I Gendalal told them that without all the panchayatdars collectively directing him to return the amount, he cannot hand over the money. Enraged by the stand taken by P.W. 1 Gendalal, the two accused persons are said to have set fire to the residential shed belonging to P.W. 1 Gendalal and his brother P.W. 3 Chhoteram at about midnight on the night of 1/2 May, 1979. The fire spread from the shed of P.W. 1 Gendalal to 13 other sheds standing nearby and all the sheds and the articles kept in them were completely burnt. Besides the loss of properties, two human beings also lost their lives viz. Gangabai, the 70 year old mother of P.W. 1 Gendalal and P.W. 3 Chhoteram and Mukesh, a 7 or 8 years old son of P.W. 3 Chhoteram. Report was given by P.W. 1 Gendalal at the Police Station Khategaon on the morning of 2nd May, 1979 and a case was registered against the two accused persons and after investigation, the police laid charge-sheet against them for the offences of murder and arson.
(3.) Charges were framed against Gokul and the appellant individually under Sections 302 and 436 I.P.C. and alternatively under Section 302 read with S. 34 I.P.C. and Section 436 read with S. 34 I.P.C. The Sessions Judge convicted both the accused under Section 302 read with Sec. 34 I.P.C. and Section 436 read with Sec. 34 I.P.C. and awarded sentences to them as set out earlier. The High Court, however, set aside the conviction of Gokul and acquitted him of both the charges but maintained the conviction of the appellant under Section 302 read with Sec. 34 I.P.C. and Section 436 read with Sec. 34 I.P.C. and the sentences imposed therefor. Two questions fall for consideration in the appeal viz. whether the evidence warrants the conviction of the appellant under the two charges and secondly whether the conviction of the appellant under the two charges can be sustained in view of the acquittal by the High Court of Gokul, a named accused.;