- (1.) THIS appeal has been filed by the appellants, namely, Srikishan, Nathu S/o Onkar, and Nathu S/o Prabhulal Meena. against the judgment of the trial court whereby they have been convicted & sentenced as under:-U/s 436 IPC-One year's R. I. with a fine of Rs. 500/- in default, six months R. I. Each.
(2.) IN a feud between two tribes, Kanjars and Meenas, one Meena was killed and the dwelling houses of Kanjars were set on fire. The present one is a case where Meenas have been prosecuted on the allegation that they set on fire to the house of Kanjars. INitially in the first information report, 18 persons were involved but later on 8 were challaned out of whom 3 were convicted who rove filed this appeal. Shri K. N. Tikku has pointed out that it is the case of Kanjars as per the statement of Hansia (PW2) that when a Meena was killed they all the Kanjars set fire on huts and ran away. They came only when they fired. Here again, only version in the F. I. R. is that there was fire from the side of Meena with the result that all the Kanjars ran away leaving their huts. Shri Tikku submitted that it was a dark night and all the huts were burnt on account of the fire and revengeful attack as one was killed, there was nothing to observe who were the accused. It was in these circumstances that the contradictory evidence and version have come in the statements, argued Shri Tikku. Shri S. B. Mathur, the learned Public Prosecutor has opposed the appeal and contended that the prosecution case stands proved. The first and foremost important feature of the case which requires consideration is that in the F. I. R. which was lodged, the allegation was against Srikishan of Gram Chhimarpura but Srikishan who has been prosecuted and is now appellant is of village Godiyamshar. These are two different villages as per the first information report, itself. I have shown the original F. I. R. to Shri Mathur as it contains overwriting on this point. Obviously, it appears to be an improved F. I. R. The prosecution having left Srikishan of village Chhimarpur scot free, has prosecuted Srikishan of Godiyamshar.
(3.) IT is also correct that Hansya (PW 2) has stated in terms on that day, there was quarrel between Kanjars in which one Meena was killed. On that all the people left the huts and went to the forest. Hansya (PW 2) has admitted that none of them were in huts when the fire was lit and they came back only after the flames were observed from a distance. When the attention of Hansya (PW 2) was invited on the above contradiction between the examination in Chief and cross-examination then Hansya (PW 2) stated that male people ran away but families remained there. In my opinion, this version is difficult to be believed. If the entire Kanjars community was frightened from the retaliated unilateral attack it is not possible to believe that the males would run away and the families would be allowed to remain there to face the attack of the Meenas. In view of this, I am persuaded to accept the contention of Shri Tikku that nothing was there after the murder and they came only after the event was over, i,e. hutmen were put to fire and Meenas must have retaliated. IT is impossible to conceive that when Meenas were attacking and setting on fire the huts, the ladies would come from the forest to observe as to who are the aggressors. Shri Tikku has also pointed out that there are several contradictions in the statement of the prosecution witnesses, to illustrate, Hansya (PW 2) has stated in cross-examination that Nathu set fire on the hut of Kalwat Singh and Shrikishan that of Sikanderi but she was confronted with the police statement then she gave different version stating that it was Nonuj and therefore, there was no allegation on Nathu. Similarly there was no allegations that Srikishan and others set on fire. It is not necessary to discuss, in details, the prosecution evidence because of the broad facts which have been proved in this case. I am convinced that after the murder of Meena by Kanjars. Kanjars were scared leaving huts and ladies to face retaliated attack of Meena. Consequently, the prosecution version on account of the above reasons becomes very doubtful. ;