B.N.Katju, J. - (1.) HANIF has filed this appeal against the judgment of IV Additional Sessions Judge, Gorakhpur dated 31-10-77 passed in Sessions Trial No. 128 of 1976 convicting him under Sections 302 and 436 IPC and sentencing him to life imprisonment and five years rigorous imprisonment respectively.
(2.) THE case of the prosecution is that Hanif appellant was a member of the party of Siddiq PW 1 which played band in marriages. About a week before the occurrence Siddiq had turned him out from his party as he was quarrelsome. This resulted in enmity between them. On 8-3-75 Siddiq and his party went to play band in the marriage of the son of Ram Narain Singh in village Madarsan in the district of Deoria. Hanif appellant also wanted to be included in the party of Siddiq but he was not taken by Siddiq. On the same day (8-3-75) the appellant went to the house of Siddiq in Amahiya Tola Bhaishia in the district of Deoria and told his wife Smt. Ilaichi PW 3 that he would burn her house. On the same day (8-3-75) at about 10.30 P.M. while Rahmatullah PW 2 the brother of Siddiq PW 1 was talking with his brother Habib in front of his house in which he lived alongwith Siddiq PW 1 the appellant came to the cattleshed of Siddiq PW 1 which was to the south of their house and ignited the thatch to the south of the door of the cattleshed which was towards east and thereafter ran away towards east. THE cattleshed caught fire. Km. Nisa daughter of Siddiq PW 1 who was sleeping inside the cattleshed along with her brother Taufiq deceased aged about ten years managed to come out of the cattleshed but Taufiq deceased and a cow and a buffalo which were tethered in the cattleshed died of burn injuries. The first information report was lodged by Rahmatullah PW 2 at Police Station Jhagaha on 9-3-75 at 0.45 A.M., the distance of the Police Station from the place of occurrence being one mile. The postmortem examination was concluded by Dr. M. H. Jilani on 10-3-75 at 11.30 A.M. and extensile burns were found on the body of the deceased.
(3.) ON internal examination the membranes, bronchi and the lungs were found to be congested. In the opinion of Dr. Jilani the cause of death was shock as a result of burn injuries. The postmortem examination of the cow and the buffalo was also conducted by Dr. N. N. Pandey and in his opinion the cause of their death was also shock as a result of extensive burns. The prosecution examined two eye witnesses, namely, Rahmatullah PW 2 and Smt. Ilaichi PW 3. Ram Autar Singh PW 4 deposed that he saw the appellant running away shortly after the incident. Siddiq PW 1 gave evidence regarding the motive for the appellant to commit the crime. The appellant pleaded not guilty and stated that he was implicated falsely due to enmity. Ramanand Upadhyay DW 1 was examined in defence.;