SANDEEP MEHTA,J. - (1.) The appellants herein have been convicted and sentenced as below vide judgment dated 17.03.2016 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.80/2011: Offences Sentences Fine Fine Default sentences Under Section 436/34 IPC 05 Years R.I. Rs.1,000/- 15 Days' Simple Imprisonment Under Section 302/34 IPC Life Imprisonment Rs.10,000/- 03 Months' Simple Imprisonment All the sentences were ordered to run concurrently. Being aggrieved of their conviction and sentences, the appellants have preferred the instant appeal under Section 374(2) Cr.P.C. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow:-
(2.) The complainant Hakru (PW-1) submitted an oral report (Ex.P/1) to the SHO, Police Station Ambapura, District Banswara at the place of occurrence i.e. Village Relbari alleging inter alia that his younger brother Sarma son of Jeevna, by caste Ninama Adiwasi aged 30 years, used to reside in a hut constructed near the main road and was indulged in the business of selling grocery items from the hut. On the day of the occurrence i.e. on 21.05.2010 at about 05.30 pm., the informant and his brother were both sitting at the shop. At that time, Rama son of Hardu, Kailash son of Kanji, Dungariya @ Narayan son of Kanji, Hariya @ Harish son of Kanji, and Kanji son of Hemla, by caste Dindor Adiwasi, residents of Bhurisagaderi came there after forming an unlawful assembly. They were carrying a bottles filled with petrol with them. On arrival, they insinuated that the shop had been put up on their land. Saying so in threatening tones, the accused surrounded Sarma and exhorted that he would be killed today. Sarma was tied by a wire. Kailash poured petrol on the body of Sarma and Dungariya @ Narayan set him to fire by a matchstick. Rama and Harish set fire to the hut due to which, a blaze flared up. The informant shouted on which, Dinesh son of Gautam, Jeevna son of Deepa, Kailash son of Gautam, Prabhu son of Gautiya, Narayan son of Puna Kharadi, came around running. By that time, the accused had escaped from the scene of occurrence after indulging in the offence. Sarma died on the spot due to burn injuries. Thereafter, numerous other people came there. The household and the grocery articles lying in the hut were destroyed in the fire. The total loss due to fire was estimated at about 25-30 thousand rupees. On the basis of the report aforesaid, an FIR No.112/2010 (Ex.P/3) came to be registered at the Police Station Ambapura for the offences under Sections 147, 148, 302 and 436 IPC. Shri Hakru submitted another report (Ex.P/2) to the Dy. S.P., Banswara on 22.05.2010 in which, five more persons in addition to those named in the FIR no.112/2010 were also alleged to be indulged in the arson and murder.
(3.) The investigation was undertaken by the SHO, Ambapura (PW-19) Shri Narendra Singh. He proceeded to prepare the site inspection plan. An iron wire and ashes lying at the spot were taken into possession and sealed. The dead body of Sarma was forwarded to the Mahatma Gandhi Hospital, Banswara for postmortem examination. The Panchayatnama Lash of the body (Ex.P/4) was prepared. The body was handed over to the relatives for cremation. The I.O. proceeded to record the statements of various witnesses under Section 161 Cr.P.C. The five accused named in the FIR were arrested. In furtherance of the information (Ex.P/23) provided by the accused Dungariya @ Narayan to the I.O. under Section 27 of the Evidence Act, an empty bottle in which, the petrol was allegedly carried, was recovered. The revenue record was collected. The five accused persons named in the subsequent report were also arrested. Finally, the investigating officer proceeded to submit a charge-sheet against 10 persons in the court of the Magistrate concerned for the offences under Sections 147, 148, 149, 302, 436 and 120B IPC. As the offences were triable by Court of Sessions, the case was committed and transferred to the court of Additional Sessions Judge, Banswara for trial. The trial court framed charges against all the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses and exhibited 30 documents to prove its case. The accused Kanji expired during the course of trial and accordingly, proceedings as against him were dropped. The accused were questioned under Section 313 Cr.P.C. and were confronted with the allegations appearing against them in the prosecution evidence which they denied and claimed to have been falsely implicated. Three witnesses were examined in defence. After hearing the arguments advanced by the prosecution and the defence and, upon evaluating and appreciating the evidence available on record, the learned Trial Judge, proceeded to acquit the accused appellants from the charge under Section 120B IPC. The accused Lalu @ Laliya, Paliya @ Bhalji, Rajeng, Roopji and Kantilal, who were named in the subsequent report (Ex.P/2) were acquitted of all the charges by extending the benefit of doubt to them. However, the appellants Rama, Kailash, Dungariya @ Narayan and Hariya @ Harish were convicted and sentenced as above by the impugned judgment dated 17.03.2016. Being aggrieved thereof, the instant appeal has been preferred. The accused Rama expired during pendency of the instant appeal and hence, the appeal was disposed as having abated to his extent. 3. Learned counsel Shri K.R. Bhati representing the appellants, vehemently and fervently urged that the entire prosecution case is false and fabricated. The deceased was involved in the illegal business of selling fuels from the hut. He used to store petrol and diesel in plastic bottles and sold them to customers. On the day of incident, unfortunately a spark led to the blaze in which, the hut was destroyed and Sarma was burnt to death. He urged that all the eye-witnesses portrayed by the prosecution were as a matter of fact not even present at the spot when the incident took place and arrived at a much later stage. He drew the Court's attention to the statement of the Medical Jurist (PW-13) Dr. S.K. Bhatnagar, who was one of the Members of the Medical Board, which conducted postmortem upon the body of the deceased and issued the postmortem report (Ex.P/15) as well as that of the I.O. (PW-19) Shri Narendra Singh, and urged that the evidence of both these witnesses completely destroys the theory put-forth in the evidence of the first informant and the other witnesses that the deceased was first bound by a wire and then he was set to fire. He urged that the I.O. admitted in his cross-examination that no wire was seen tied to the body of Sarma when it was taken out from the burnt hut. Likewise, the Medical Officer also admitted that no marks of any wire being tied to the body of the deceased were visible when postmortem was carried out and that the appearance of the binding marks in case, the deceased had been tied with a wire before setting him to fire, was imperative. He further submitted that the conduct of the eye witnesses in not making any attempt to save the deceased despite being aware that the accused were setting him to fire, also casts a grave doubt on the truthfulness of their claim that they saw the incident with their own eyes. Shri Bhati further submitted that the complainant made an apparent attempt of falsely implicating five more accused in the subsequent report (Ex.P/2) and this conduct is depictive of the fact that he was trying to rope in as many accused as possible in this falsely foisted case. He thus implored the Court to accept the appeal, set aside the impugned judgment and acquit the appellants of the charges. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants' counsel and urged that the version of the eye-witnesses is absolutely truthful and natural. The murder took place in broad light and thus, it is impossible to believe that nobody would have seen the incident happening. He submitted that the accused were bearing an enmity with the deceased who had constructed the hut on their land. The incident was perpetrated after extending a threat to the deceased as to why he had trespassed on their land. The eye-witnesses had no occasion to falsely implicate the accused in the case. As per the learned Public Prosecutor, there is no truth in the defence theory that the fire was accidental. He urged that if at all, the blaze had erupted accidentally then, Sarma would definitely have rushed out of the hut to save himself. He thus craved dismissal of the appeal and sought affirmation of the impugned judgment. ;