Nirhoo Badhai vs State Of U.P.
2018 Latest Caselaw 1998 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on :- 10.08.2018
 
Delivered on :-  18.08.2018
 

 
Case :- CRIMINAL APPEAL No. - 1058 of 2000
 
Appellant :- Nirhoo Badhai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- D.R.S. Chauhan,Apul Misra,P.N. Mishra
 
Counsel for Respondent :- D.G.A.,Chanchal Kumar Rai, Pradeep Yadav,S.K. Misra
 

 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 1118 of 2000
 

 
Appellant :- Harish Chand Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- D.R.S. Chauhan,G.S.Chaturvedi,Kamla Srivastava,R.K. Paramhans Singh,Sanjay Kumar Mishra
 
Counsel for Respondent :- A.G.A.,Chanchal Kumar Rai,Pradeep Yadav,S.K. Misra
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Harsh Kumar,J.)

These two appeals have been filed against the judgment and order dated 8.5.2000 passed by 1st Additional District and Sessions Judge, Azamgarh by which out of 10 accused-persons one Harish Chand Yadav was convicted and sentenced for the offences under sections 302, 148 and 436 IPC and section 25 Arms Act and rest 09 accused-persons were convicted and sentenced for the offences under sections 302/149, 147 and 436 IPC. Feeling aggrieved 09 convicted accused-persons jointly filed Criminal Appeal No.1058 of 2000, while one convict Harish Chand Yadav filed Criminal Appeal No.1118 of 2000 against the order of conviction and sentence under sections 302/149, 147 and 436 IPC and sections 302, 148 and 436 IPC and section 25 Arms Act respectively .

All the accused were tried in S.T. No.245 of 1996 for the offences under sections 147, 148, 149, 436, 302 IPC while accused Harish Chandra was also tried for offence under section 25 Arms Act in S.T. No.246 of 1996. The two sessions trials were decided together by a consolidated judgment and the two appeals against the one and same judgment were heard together and are being disposed of by one common judgment.

During pendency to criminal appeal No.1058 of 2000 appellant No.1 Nirhoo and appellant no.6 Moti Yadav were reported to have died and appeal in respect of them stood abated.

The brief facts relating to the case giving rise to two appeals are that one Shiv Moorat Yadav son of Surya Bali Yadav on a tehrir scribed by Ram Bhawan Yadav, lodged a F.I.R. in P.S. Mubarakpur at Case Crime No.27 of 1996 at 10:30 a.m. on 22.01.1996 with the following story of incident.

"A civil suit by applicant Shiv Moorat is pending in the Court of Munsif Muhamdabad in respect of Sehan land with Nirhoo of his village in which Court has issued an injunction order. Today at about 7:00 a.m. when he was feeding she buffalo at his door Nirhoo Badhai, Gayatri @ Keshav, Raj Karan, Harish Chand Yadav, Makkhan, Inroo, Moti Yadav, Bal Chand Yadav, Nayanoo Yadav and Gyash Badhai of his village armed with lathis, Katta, came with common object/intention to set her Mandhai/hut on fire. On his alarm, Lal Bahadur, Balihari, Durga, Udai Bhan and several other persons of his village arrived and started extinguishing the fire and meanwhile on the exhortation of all the accused-persons, Harish Chand Yadav fired which caused injuries in chest and abdomen of Lal Bahadur and he fell on the ground. On his falling down, all the accused-persons fled away, his hut was burnt and when they were taking the injured to hospital, he died on way and they have brought his dead body to police station." Shiv Moorat.

Upon investigation charge sheet was submitted and case was committed to sessions. The Additional Sessions Judge framed charges under sections 148, 436 and 302 IPC and section 25 Arms Act against accused-appellant Harish Chand Yadav and under sections 147, 436 and 302/149 against the rest 09 accused-appellants, which were denied by them and they demanded trail.

The prosecution in order to bring home the charges, produced first informant Shiv Moorat Yadav as P.W.1, Balihari and Udai Bhan eye witnesses as P.W.2 and P.W.3, Ghanshyam Sharma Head Constable to prove Chik F.I.R. as P.W.4, S.I. Prem Prakash Singh Investigating Officer as P.W.5, Moorat the marginal witness of memo of recovery of weapon of crime from Harish Chand Yadav as P.W.6, Constable Arjun Singh, who taken the body of Lal Bahadur for postmortem as P.W.7, S.I. Ajeet Kumar Mishra, who proved the papers and prosecution sanction under section 25 of Arms Act as P.W.8 and autopsy surgeon Dr. H.C. Srivastava as P.W.9 and closed. Thereafter statements of accused-persons were recorded under section 313 Cr.P.C. who did not adduce any oral evidence in defence. After hearing the parties, learned lower court delivered the impugned judgment and order holding all the accused guilty of charges framed against them and sentenced accused Harish Chand Yadav with life imprisonment under section 302 IPC, 2 years rigorous imprisonment under section 148 IPC, 4 years rigorous imprisonment under section 436 IPC and 3 years rigorous imprisonment under section 25 Arms Act and sentenced other accused-persons with life imprisonment under section 302/149 IPC, 1 year rigorous imprisonment under section 147 IPC and 4 years rigorous imprisonment under section 436 IPC. Feeling aggrieved the convicted accused-persons have preferred two appeals for setting it aside their conviction and sentence as well as for an order of acquittal in their favour.

We heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri D.R.S. Chauhan and Sri R.K. Srivastava, learned counsel for the appellants as well as Sri N.K.S. Yadav, learned AGA for the State and perused the record, paper book as well as original record of court below summoned in this appeal.

Perusal of record shows that prosecution has produced the first informant as P.W.1 and two witnesses of fact as P.W.2 and P.W.3, who are alleged to be eye witnesses of the incident Scribe of F.I.R. Ram Bhawan Yadav, and two other eye witnesses of incident Durga and Subedar were not produced. It is pertinent to mention that weapon of crime, the pistol was recovered at the pointing of accused-appellant Harish Chand Yadav on 12.2.1996, after 20 days of the incident of which memo of recovery was duly proved by Moorat P.W.5, who is marginal witness of memo Ext. A-13. And Case Crime No.58 of 1996 was registered against him under section 25 Arms Act. Other witnesses P.W.4 to P.W.9 are formal and have duly proved the documentary evidence on record.

As per averments made in F.I.R., all the accused-persons armed with lathis, kattas arrived with common object and ablazed his hut and upon exhortation by rest, accused-appellant Harish Chand Yadav fired at Lal Bahadur who succumbed to the injuries. In his statement as P.W.1 the first informant has assigned Ballam to accused-appellant Gayatri, Pistol to accused-appellant Harish Chand Yadav and lathis to all the rest and has assigned specific role of arson to accused-appellant Nirhoo Badhai, who has died pending appeal.

As per post mortem report of Lal Bahadur deceased Ext. A-21 duly proved by autopsy surgeon Dr. H.C. Srivastava P.W.9, the death of 22 years old Lal Bahadur did take place about one and half day before the time of his post mortem at 3:00 p.m. on 23.1.1996 due to shock and hemorrhage, following ante mortem injuries, which tallies with the time of incident. At the time of postmortem, following injuries were found on the person of deceased :-

ANTE MORTEM INJURIES

(1) Multiple fire arm wound of entry in area of 22 cm x 12 cm on front of lower chest, upper abdomen and one present 3.0 cm below umblicus. Each measuring 0.2 cm x 0.2 cm x depth not probed with margins inverted, blackening present around the wound.

(2) Multiple firearm wound of entry on dorsum of lt. hand measuring 0.2 cm x 0.2 cm x skin deep with margins inverted blackening around the wound present, five metalic pellets recovered from the wound.

(3) Abrasion 2.5 cm x ½ cm on back of rt. Elbow.

(4) Abrasion 2 cm x 1 cm on back of lt. Elbow.

The learned counsel for appellants have contended that

(i) that since before the incident in question two cross cases are pending between parties as F.I.R. at Case Crime N.361 of 1994 was lodged by Suryabali (father of first informant) against Lochan and seven others of appellants party, under sections 147, 148, 307/149, 323, 504, 427 IPC and in counter blast another F.I.R. of cross case was lodged by Ram Vriksha Yadav at Case Crime No.361-A of 1994 against Shiv Moorat, (first informant) and six others under sections 147, 148, 149, 307, 323/504 IPC.

(ii) the role of arson has been specifically assigned to Nirhoo and other co-accused-persons have been falsely implicated due to enmity and because of their being surety for accused-persons in Case Crime No.361 of 1994 filed by father of first informant of which cross case being Case Crime No.361-A of 1994 was pending against first informant and his associates.

(iii) undisputedly in respect of hut in question, the first informant filed a civil suit for injunction and obtained an exparte decree during the period when accused-persons were in custody in this matter and the above exparte decree was set aside and civil suit is pending for disposal and matter is sub-judice before the Court.

(iv) accused-appellant Harish Chand Yadav was doing pairvi in Case Crime No.361 of 1994 due to which he has been falsely implicated. He had no motive to cause death of Lal Bahadur or to participate in the incident.

(v) there are material contradictions between the medical evidence and ocular evidence on record with regard to death of Lal Bahadur, who appears to have been killed in mid night by some unknown persons and since the assailants could not be identified, Harish Chand Yadav has been falsely implicated due to enmity.

(vi) recovery of firearm, the weapon of crime from accused-appellant Harish Chand Yadav has been falsely planted, of which the own men of first informant were made false witnesses. No such fire arm was ever recovered from the accused-appellant Harish Chand Yadav.

(vii) there are material contradictions in the averments made in F.I.R. and the prosecution evidence and various improvements have been made in evidence during trial.

(viii) original written report is not on record and so also the prosecution case deserves to fail.

According to Chik F.I.R. Exhibit A-2, on written report of Shiv Moorat Yadav, scribed by Ram Bhawan Yadav Case Crime No.27 of 1996 was registered on 22.1.1996 at 10:30 a.m. against the accused-appellants, ten named persons for the criminal incident allegedly committed by them at 7:00 a.m., under sections 147, 148, 149,34, 436 and 302 IPC, P.S. Mubarakpur, District Azamgarh.

According to averments made in F.I.R., all the accused persons armed with lathi and Katta (pistol) came with common intention and ablazed hut of first informant and on his alarm Lal Bahadur, Balihari, Durga, Udai Bhan, Subedar and several other persons came and started extinguishing the fire, upon which all the accused-persons exhorted and upon such exhortation Harish Chand Yadav fired, which hit Lal Bahadur in chest and abdomen, he fell down on ground, the accused-persons fled away, his hut was burnt to ashes and when the injured Lal Bahadur was being taken to hospital, he succumbed to the injuries on way to hospital and his dead body was taken to police station.

As per prosecution case, apart from first informant Shiv Moorat Yadav, Durga, Udai Bhan, Balihari, Subedar and Lal Bahadur (deceased) were eye witnesses of the incident out of which prosecution has produced the first informant as P.W.1, Balihari and Udaibhan as P.W.2 and P.W.3 to bring the eye witness account of the incident before the Court.

The learned counsel for the appellants submits that P.W.2 Balihari is co-accused with first informant in Case Crime No.361-A of 1994, which is cross case of Case Crime No.361 of 1994, in which Harish Chand, Raj Mohan, Rudal, Sukhraj etc. of rival group are accused. In Case Crime Nos. 361 of 1994 and 361-A of 1994 persons of Gaderiya caste (of first informant's group) and Yadav caste (of accused group), respectively are accused. The prosecution has failed to produce independent and trustworthy witnesses of incident.

It is noteworthy that in F.I.R. no specific role of arsoning the hut of first informant has been assigned to any of the ten accused-persons, but in his statement on oath before the Court as P.W.1 the first informant has assigned specific role of arson to accused-appellant Nirhoo Badhai only. He has stated that a civil suit for injunction in respect of land, over which hut in question situated, was filed by him against Nirhoo Badhai, who set his hut on fire at 7:00 a.m. on 22.1.1996 when he was feeding his she buffalo and other accused-persons armed with lathis, Harish Chand armed with Katta and Gayatri with ballam had arrived there with an intention to cause death, abused him and upon his alarm for extinguishing the fire witnesses, villagers etc. arrived and being exhorted accused-appellant Harish Chand fired at Lal Bahadur by Katta (pistol). He has also stated that accused-persons had no enmity with Lal Bahadur and they exhorted for killing him, only because he was also extinguishing the fire of his hut.

In contradiction to above statement of P.W.1, Balihari P.W.2 has stated that upon hearing first informant, who was crying that these people are going to set his hut on fire , he reached on the spot and saw that accused Nirhoo was setting the hut of first informant on fire with match box in his hands and Gayatri with ballam, Harish Chand Yadav with Katta and others with lathi exhorted for killing whosoever extinguishes the fire and when he, Lal Bahadur, Subedar and Udai Bhan started extinguishing the fire, Harish Chand fired with an intention to cause death and the pellets of fire hit Lal Bahadur in abdomen, chest and left hand.

In further contradiction with P.W.1 and P.W.2, Udai Bhan P.W.3 has stated that upon hearing alarm of Shiv Moorat that his hut has been put to fire, he reached the spot with bucket and poured few buckets of water to extinguish the fire while Balihari, Lalji, Subedar, Durga and six more reached to extinguish the fire.

The statements of P.W.1 to P.W.3 are contradictory to each other. The first informant P.W.1 himself says that he raised alarm after his hut was set on fire, while his witness P.W.2 says that alarm was raised by him before the hut was set on fire and he, Lal Bahadur and few others were extinguishing fire while P.W.3 says that he reached the spot after the hut having been put on fire and apart from him Lal Bahadur and 9-10 other persons extinguished fire.

Admittedly P.W.3 reached the spot after the hut was set on fire and has not assigned specific role of arsoning to any of the accused, while P.W.1 and P.W.2 have assigned specific role of setting the hut on fire to accused-appellant Nirhoo Badhai and none else. The other accused-persons except Harish Chand Yadav, have been assigned with the role of exhortation for killing whosoever extinguishes the fire, while Harish Chand Yadav has been assigned with the role of firing with pistol, causing fatal injuries to Lal Bahadur at the time of extinguishing fire, resulting in his death.

It is noteworthy that P.W.2 is co-accused with the first informant in Case Crime No.361-A of 1994 under section 307 etc. IPC. P.W.3 is nephew of P.W.2 and son of P.W.6 while P.W.2 and P.W.6 are real brothers. The above witnesses have been stated to be interested witnesses and in absence of evidence of any other independent witness of the occurrence, we find force in the argument of learned counsel for the appellants that the testimonies of P.W.2 and P.W.3 are to be seen with extra caution.

Learned counsel for the appellants have submitted that there was civil dispute over land of hut in question between first informant and Nirhoo and other accused-persons have been falsely implicated merely because accused-appellant Harish Chand Yadav was co-accused in cross case, Case Crime No.361 of 1994 and accused-appellants Makkhan, Inroo, Bal Chand Yadav, Nayanoo Yadav had stood as surety for co-accused Harish Chand, Ramjeet, Rudal and Sukhraj etc. in above criminal case under section 307 IPC, which is proved from the documentary evidence produced by accused-persons in defence evidence per list No.112-B, while accused-appellant Moti Yadav was falsely implicated being father of accused-appellant Bal Chand Yadav. He submitted that there is no evidence on record to show that they formed any unlawful assembly or were even present on the spot or committed the incident in question in furtherance of common object of unlawful assembly allegedly formed by them.

Upon analysis of evidence on record, we find that it is proved from the defence evidence on record that above mentioned accused-appellants were sureties for accused-persons in Case Crime No.361 of 1994 filed by father of first informant and though ballam has been assigned to accused-appellant Gayatri and lathis to other accused-appellants, but no injury is alleged to have been caused by any of them with lathis or ballam to first informant or his associates and no overt act except of exhortation has been assigned to any of the accused except Nirhoo and Harish Chand, who have been assigned with the role of ablazing the hut of first informant and making fire with pistol, respectively. There is no whisper by first informant even in his statement as P.W.1 that accused-appellant formed any unlawful assembly and the common object of such unlawful assembly was to cause his death or put his hut on fire and he is not alleged to have sustained even any simple injury. We find that there is no iota of evidence on record to show that all the accused-appellants armed with deadly weapons formed any unlawful assembly with common object of ablazing hut of first informant or killing any person or committed the offence in question in prosecution of common object of such unlawful assembly.

It is not the case of prosecution that all the accused-persons came with burning torches (Mashals) and collectively torched the hut (Mandhai) of first informant Shiv Moorat Yadav, rather as per prosecution case, the hut of first informant was set on fire with match box only by accused-appellant Nirhoo. Undisputedly, a match box carries a size around 5 cm x 3 cm and can be easily put in the pocket. Usually villagers, who use to smoke Biri , Cigrette etc. also use to keep it in their pocket. Undisputedly habit of smoking was commonly prevalent in villages about 22 years ago at time of incident in question. There is no evidence on record to show that Nirhoo had any habit of smoking, but still he could have hidden the match box in his pocket without knowledge of co-accused-persons. Even if the presence of other accused-persons is presumed on the spot at the time of incident along with accused-appellant Nirhoo. Merely by their presence at the spot in absence of any reliable evidence to their active participation, it will not be correct to infer that they had formed an unlawful assembly with Nirhoo Badhai with common object to put the hut of first informant on fire and cause death of someone or first informant or Lal Bahadur and none of them except accused-appellant Harish Chand is alleged to have committed any overt act or cause any injury to the first informant or any other person with the alleged lathis or ballam in their hands. Since a match box would have been there in the pocket of Nirhoo in usual course or even hidden by him inside his pocket, the possibility of no knowledge about it and his intentions of arsoning the hut rather accompanying him only to threat first informant, may not be ruled out. In such situation, if Nirhoo Badhai suddenly set the hut (which was a thatched construction of Chappar (dry straws) etc.) on fire by his match box, the other co-accused persons may not be held guilty for sharing the common object with him with the aid of provisions of section 149 IPC.

As far as the accused-appellant Harish Chand Yadav is concerned, he has been assigned with the role of firing with a pistol, resulting in death of Lal Bahadur. From his overt act it appears that he was sharing common intention with Nirhoo Badhai in putting the hut of first informant on fire and may be held guilty of offence.

It is the prosecution case that all the accused-persons exhorted for killing whosoever extinguishes fire, upon which Harish Chand Yadav made a fire, which hit Lal Bahadur on chest, stomach and hand, resulting in his death on way to hospital. It is noteworthy that pistol or revolver can also be hidden in the pocket without knowledge to the others and such knowledge may neither be imputed on other accused-persons nor they may be held liable for his act particularly when there was no enmity with Lal Bahadur and the unlawful assembly is not alleged to be having common object of causing death of Lal Bahadur.

Undisputedly there was dispute of land between first informant Shiv Moorat and accused-appellant Nirhoo Badhai and civil suit was pending between them. The other accused-persons were not claiming any rights or interests in the land of hut in question. In any case, due to above dispute, accused-appellant Nirhoo Badhai or his associates at the most may have an intention to cause death of first informant or to cause grievous injuries or huge loss to first informant, and may not have any motive or intention to cause death of a person, other than the first informant. It may be repeated that all the accused-persons are alleged to be armed with lathis, ballam and pistol, but none of them (except Harish Chand Yadav) is alleged to have caused any injury either to first informant or to any other person, or even to Lal Bahadur. Hence in view of evidence on record, we find that the prosecution has failed to produce any reliable, cogent or trustworthy evidence to prove that the accused-persons formed any unlawful assembly and such assembly had any common object to ablaze hut and cause death of Shiv Moorat first informant or cause death of Lal Bahadur and committed that same in prosecution of common object of alleged unlawful assembly of all accused-appellants.

Admittedly accused-appellant Harish Chand had no enmity with deceased Lal Bahadur. Shiv Moorat has specifically stated in his examination-in-chief as P.W.1 that "accused-persons had no enmity with Lal Bahadur". Since there was no enmity between Lal Bahadur deceased or accused appellant Harish Chand Yadav and he was not claiming any interest in the land of hut in question, accused-appellant, Harish Chand Yadav, may not be having any motive to cause his death. Accused-appellant Harish Chand Yadav has denied his presence on the spot at the time of incident and has stated that he did neither make any fire nor did caused any fatal injury to Lal Bahadur or anybody else and Lal Bahadur appears to have been killed by some unknown assailant and he has been falsely implicated due to enmity of Case Crime No.361 of 1994 and Cross Case Crime No.361-A of 1994. We find no force in this contention and find no reason to doubt his presence on the spot at the time of incident which is fully proved from the evidence on record. Balihari P.W.2 has stated that Harish Chand Yadav made a fire with an intention to cause death, pellets of which hit Lal Bahadur in abdomen, Chest and left hand. The above witness has not stated as to fire was made with an intention to cause death of which person, first informant or Lal Bahadur or any other person rather has made a vague statement that fire was made with an intention to cause death. In the circumstances even if the fire would have been made by accused-appellant Harish Chand Yadav without any intention to cause death of Lal Bahadur, be he had full knowledge that it may cause fatal injury to someone and, thus, by making such fire he caused fatal fire arm injury on vital parts of Lal Bahadur, resulting in his death.

Undisputedly only a single fire is alleged to have been made by accused-appellant Harish Chand Yadav and he is not alleged to have repeated the fire. The blackening and tattoing over the gun shot and recovery of pellets from wound as well as seat of injury shows that Lal Bahadur sustained gun shot injury on vital part of body from a close range. In the circumstances it will not be correct to say that fire was made to disperse the crowed in which case fire would have been made upwards in the air. Though accused-appellants is not alleged to have repeated the fire and was not having any enmity with Lal Bahadur deceased and had no motive or intention to cause death of Lal Bahadur in pre planned manner yet since the act of firing was done by him with the knowledge that it is likely to cause death or such bodily injury as is likely to cause death of the person to whom harm is caused in ordinary course of nature, he has committed an offence of culpable homicide not amounting to murder and is liable to be held guilty for the offence under section 304 Part II IPC and not of offence under section 302 IPC.

We are of the considered view that the prosecution has failed to prove by any cogent, reliable and trustworthy evidence that accused-appellant Gayatri, Rajkaran, Makkhan, Inroo, Moti Yadav, Nayanoo Yadav, Gayash or Bal Chand armed with deadly weapons formed any unlawful assembly with Nirhoo Badhai and Harish Chand Yadav or either ablazed the hut of first informant Shiv Moorat or caused death of Lal Bahadur in prosecution of common object of such unlawful assembly. All of them are alleged to have exhorted by calling accused-appellant Harish Chand Yadav to cause death, whosoever extinguishes fire, but none of the prosecution witnesses has stated as to what words were uttered by each and every of them or collectively by all of them.

It is proved from the evidence on record two sessions trials under section 307 IPC were pending between the parties arisen out of Case Crime No.361 of 1994 in which persons of the group of accused party were charged under section 307 etc. IPC and case crime No.361-A of 1994 in which persons of prosecution party were charged under sections 307 etc. IPC, which are cross cases of each other. Several accused-appellants, stood as sureties for the accused in the case Crime No.361 of 1994, under section 307 IPC and since no overt act has been assigned to any of them, while all of them were alleged to be armed with lathis and ballam, the charge of exhortation levelled against them do not aspire confidence. An empty handed person may exhort the other for killing the victims but it is quite natural that if such person is armed with any weapon lathi, ballam etc, at the time of exhorting others, he will also assault the victim and actively cause him/them injuries whatever he may cause.

There is a tendency to implicate some more persons in addition to real assailants by attributing them the role of exhortation. The evidence on record does note indicate participation of above accused-appellants in the incident in question by exhortation or in any other manner whatsoever. In absence of any independent, cogent and reliable evidence, we find that they have been falsely implicated by assigning them role of exhortation and it is not a fit case for upholding their conviction on the alleged role of exhortation. It is pertinent to mention that the evidence of exhortation in itself is in the very nature of things, a weak piece of evidence, and may not be safely relied.

As far as the loss of written report is concerned, we find that it is proved from the evidence on record that Chik F.I.R. was prepared on the basis of written report Tehrir, and so there may be no reason to doubt the correctness of facts mentioned in Chik F.I.R. Exhibit A-2 and arguments of learned counsel for the appellants that due to loss of original Tehrir written report, the prosecution case deserves to fail, has no force.

The evidence on record shows that the hut in question is not alleged to be ordinarily used as a place of worship or as a human dwelling or as a place for custody of property. The prosecution witnesses have not made any whisper as to what goods were turned to ashes due to fire in the hut in question rather Shiv Moorat Yadav, first informant as P.W.1 has specifically stated in para 24 of his statement "that in the hut in question there were no goods and only cattle were used to be tied." No cattle was allegedly tied inside the hut at the time of incident or died due to burns in the hut in question. The statements of P.W.2 and P.W.3, that first informant used to keep cot and bedding etc. in the hut in question may not be relied being in contradiction to the statement of P.W.1. Moreover P.W.2 in para 4 has stated that "when the hut in question was burnt there was no cattle inside the hut and he did not see any goods in the hut at that time."

Upon careful analysis of evidence on record, we are of the considered view that since the hut in question was not being ordinarily used as a place of worship or as human dwelling or as a place for custody of property and there was no cattle or goods inside the hut at the time of incident, by putting the empty hut on fire with an intention to destroy the same, no offence under section 436 IPC can be said to have been committed by accused-appellants or any of them, rather above act of arsoning such empty thatched hut, falls within the ambit of offence under section 435 IPC for causing mischief by fire with an intention to cause damage to any property to the amount of Rs.100/- or upward. Since the prosecution has not stated as to what was the amount of loss, the offence of accused-persons Nirhoo Badhai and Harish Chand comes only under section 435 IPC.

In view of discussions made above, we are of the considered view that the prosecution has failed to prove the charges of offences under section 302 read with section 149 or section 147 or section 436 IPC against accused-appellants Gayatri, Rajkaran, Makkhan, Inroo, Moti Yadav, Bal Chand Yadav, Nayanoo Yadav and Gayas Badhai or any of them and the impugned judgment and order of their conviction under section 302/149 IPC and under sections 147, 436 IPC as well as sentence under above sections are wrong and illegal and are liable to be set aside. The accused-appellant Nirhoo Badhai, who is alleged to have set the hut in question on fire and have exhorted Harish Chand Yadav has died and appeal in respect of him has abated. The prosecution has failed to prove offence under section 436 IPC against accused-appellant Harish Chand Yadav and his conviction and sentence under section 436 IPC is also liable to be set aside. On the evidence on record accused-appellant Harish Chand Yadav is liable to held guilty for the offence under sections 435 and 304 Part II IPC as well as section 25 of Arms Act. The impugned judgment and order convicting him for the offences under section 302, 148 and 436 IPC are liable to be set aside and appeal is liable to be partly allowed and his conviction is liable to be altered by convicting him for the offences under sections 304-II and section 435 IPC.

In view of discussions made above Criminal Appeal No.1058 of 2000 is allowed (which has been abated in respect of appellant no.1 Nirhoo Badhai and accused-appellant no.6 Moti Yadav) and the impugned judgment and order convicting and sentencing the appellants for the offences under section 302/149, 147 and 436 IPC is set aside. They are found not guilty of above offences and are acquitted of the charges framed against them.

The appellants are on bail, their bail bonds and surety bonds are cancelled and sureties are discharged. They need not surrender unless wanted in some other case.

Criminal Appeal No.1118 of 2000 is partly dismissed and conviction and sentence of appellant under section 25 Arms Act is upheld. The appeal is partly allowed and the impugned judgment and order convicting and sentencing the accused-appellant Harish Chand Yadav for the offences under sections 302, 148, 436 IPC is set aside. The conviction of accused-appellant Harish Chand Yadav is altered from sections 302, 148 and 436 IPC to the conviction for the offences under sections 435 and 304(II) IPC and he is sentenced with rigorous imprisonment for a period of 07 years and fine of Rs.10,000/- under section 304(II) IPC and in case of default in payment of fine with imprisonment for an additional period of six months, and with rigorous imprisonment for a period of two years and fine of Rs.5000/- under section 435 IPC and in case of default in payment of fine with imprisonment for an additional period of one month. All the sentences under sections 304(II) and 435 IPC and 25 Arms Act shall run concurrently.

The appellant Harish Chand Yadav is on bail. His personal bond and surety bonds are cancelled and sureties are discharged. He is directed to surrender forthwith to undergo remaining period of sentence.

The two appeals are disposed of, accordingly.

Let the lower court record be transmitted back to court below, along with a copy of this order for necessary action, if any.

The material exhibits, if any, be disposed of in accordance with rules.

Order Date :- 18/08/2018

Tamang