JUDGMENT
R.D. Shukla, J.
1. The appeal is directed against the judgment and order dated 12-1 -1988 of Ist Addl. Sessions Judge, Mandsaur passed in S. T. No. 72/82 whereby the accused-appellants have been convicted under Sections 147, 436 r/w 149, 323 r/w Section 149 of I.P.C., and sentenced to RI for 6 months, 4 years and 3 months each with a direction of running of sentences concurrently.
2. The brief history of the case is that there was a long dispute between Balu Singh on the one hand and Sagar Singh on the other. It appears the police was apprehensive of breach of peace. As such, some police officers were deputed in village Mundedi. It is alleged that on 8-10-81 at about 10 p.m. of the accused-appellants including three other persons i.e. Ranvir Singh, Dashrath Singh and Kalu Singh had assembled in front of the house of Balu Singh. They abused him. Balu Singh’s son Bhanwar Singh and his daughter Shivkumari were in the house. Balu Singh came from Mundedi Bazar. Accused Sagar Singh exhorted his associates to assault Balu Singh and Bhanwar Singh. Balu Singh, Bhanwar Singh and Shivkumari apprehending the danger entered their house and that too in a room, and bolted the door from inside. Accused persons tried to break open the door and not being successful in getting the door open they bolted the door from out-side and locked it.
3. Vijaykumari wife of Balu Singh prayed for mercy but accused No. 4 Rajendra Singh, accused No. 5 Jujhar Singh, accused No. 9 Pappu and accused No. 3 Ishar Singh assaulted her caused injuries by knife, lathi and stones. She sustained injuries in the right ankle both thighs, cheek, chest and left arm. Khushal Singh, other son of Balu Singh and Guddi other daughter of Balu Singh also beseeched for mercy but they were also assaulted. Meanwhile, some of the accused-persons climbed on the roof made hole by removing ’tiles and thereafter they peltled stones inside the room where Balu Singh Bhanwar Singh and Shivkumari had taken shelter. Shivkumari sustained injuries on neck, leg and abdomen. Thereafter all the accused persons shouted for setting the house to fire so that the inmates inside the house burn alive. The accused persons brought bundles of dry grass set it to fire and put them on the rafter and the part of it was thrown inside the room. As such the rafter and the clothes were burnt. Balu Singh, Bhanwar Singh and Shivkumari escaped from a hole created between the two rafter frame. They tried to extinguish the fire. It is further alleged that apprehending danger Prajapal Singh other son of Balu Singh had gone to Out-post Pipliay and reported the matter at 2.35 p.m. Some police persons were sent. Sub-Inspector Babu Singh Chouhan opened the lock of the room before the Panchas and prepared Panchnama with the estimate of loss caused by fire. After investigation challan against 12 persons was filed which was committed to the Court of Session in due course.
4. Accused persons abjured the guilt and pleaded that they have been falsely implicated due to previous enmity.
5. Learned trial Judge has acquitted three persons named above and convicted and sentenced accused appellants as above. Hence this appeal.
6. The contention of the learned counsel for the appellants is that the prosecution witnesses are highly interested. Their statement cannot be accepted on face value. They have tried to rope in some innocent persons as well. As such, they are unreliable. The last contention of the ld. counsel for the appellant is that the incident happened in the year 1982. Now nearly 12 years have been elapsed and, therefore, clemency in the matter of sentence may be shown.
7. As against it learned counsel for the State has submitted that the accused persons have not only assualted the members of the family of Balu Singh but have caused mischief by setting the house to fire and that too after the complainants have confined themselves in a room for saving their life.
8. P.W. 6 Balu Singh while supporting the case of prosecution has stated about the presence of all the accused persons at the time of incident. He has further asserted that they all abused and caused threats to him and his family members. As such he along with Bhanwar Singh and Shiv Kumari entered the house and bolted from inside. He has further stated that Sagar Singh exhorted all other accused persons to bolt and lock the house from out-side and to set it to fire. He has stated about the presence of gun and the overt act of other persons before and at the time of setting fire to the house. But it is difficult as to how could he see the overt act of the persons out-side the house as he himself was inside the room of the house. He has stated that the accused persons climbed over the roof without giving the specific name of the persons.
9. P.W. 7 Shivkumari while supporting the case of the prosecution has stated that Ishwar Singh, Rajendra Singh and Jujhar Singh.
10. P.W. 8 Bhanwar Singh has also stated that at the exhortation of Sagar Singh, Ishwar Singh, Jujhar Singh and Rajendra Singh set fire to the house.
11. P.W. 9 Vijaykunwar wife of Balu Singh, as stated by prosecution witnesses, was out side the house. She requested the accused persons not to break open the door and further requested not to bolt and lock the house from outside. She has further stated that Samrath Singh kicked her and thereafter caused injuries by stick. Sagar Singh also assaulted her by but of the gun. She has also stated that Ishwar Singh and Jujhar Singh also assaulted her. In the earlier part of her statement she has stated about the presence of all the accused persons in a general Way. But for the specific act she has stated that Sagar Singh exhorted, Jujhar Singh bolted from out-side and thereafter, after stating about the weapons that the accused persons were keeping, she has stated that Samrath Singh, Ishwar Singh and Jujhar Singh have assaulted her. Though she has stated that all the accused persons climbed over the roof but about the specific act of setting the house to fire she has named Rajendra Singh, Ishwar Singh and Jujhar Singh. Since she was out-side the house and, therefore, she had an opportunity of watching the specific act of the accused persons.
12. Dr. Pradeep Sharma (PW 15) has stated that he examined Vijaykunwar on the same day i.e. 9-10-81 and found more than 8 injuries; out of them five were contusions and three were abrasions. He has proved his report Ex. P/l 4 and further stated that the injury to them must have been caused within 16 to 18 Hrs. The incident is of 8-10-1981 and therefore, it can easily be assumed that injuries to Vijaykunwar has been caused at the time of incident. Her presence on the spot, therefore, cannot be doubted. Dr. Pradeep Sharma has also stated about the injuries found on the body of Shivkumari (P.W. 7) Injuries on the body of Khushal Singh S/o accused Balu Singh and Giddi D/o accused Balu Singh aged about 12 and 9 years respectively but the injuries on their body were minor i.e. abrasions on the left and the right middle side of the right leg (Khushal Singh) and contusion (on Giddi). These kids may have sustained injuries during the melee.
13. The prosecution witnesses further stand corroborated from the statement of P.W. 18 Babu Singh Chouhan who has stated that the house was bolted and locked from out-side. He got the lock broken. The rafters used in the roof of the house were sufficiently burnt and the goods inside the house were also found burnt. He, therefore prepared Panchnamas Ex. P/1 and P/2. This fact has not been challenged very seriously, and therefore, it is proved from the evidence of the independent witnesses that the house of Balu Singh was set to fire. It has also been found proved that Vijay Kunwar sustained injuries and she was out-side the house and therefore she had an opportunity of watching the overt acts of the accused persons. In view of this the statement of P.W. 6 Balu Singh P.W. 7 Shivkumari and P.W. 8 Bhanwar Singh found support from the statement of P.W. 9 Vijay Kunwar.
14. Though it is true that the witnesses are closely related and because of the earlier animosity they are interested witnesses but as independent witnesses they have not come forward to state about the facts of the incident, we will have to be scrutinise the evidence of these witnesses only and if they find support and corroboration from other evidence they shall be accepted.
15. The incident has happened in the mid of a village so many persons of the village must have seen the incident, but either the accused persons are so influential that the witnesses out of fear have not come forward to state the truth or either they were indifferent to the incident or are cowered to that extent and they do not want to help the law. However, the Court will have to come to a conclusion on the basis of the evidence adduced by the prosecution. There is no manner of doubt that incident took place, the house of Balusingh was set to fire Vijaykunwar and Shivkumari sustained injuries. It is the incident of house setting to fire and, therefore, the presence of Balusingh and Bhanwarsingh cannot be doubted.
16. However, while appreciating the evidence and before accepting the presence of the persons with all certainly the overt acts of the accused persons as disclosed will have to be taken into consideration.
17. All these accused whose overt acts have not been specifically stated that will be entitled to the benefit of doubt as they may have been a byestanders only. Thus, from the evidence of Vijaykunwar the overt act of Sagarsingh which has also been stated by P.W. 6 Balusingh, P.W. 7 Shivkumari and P.W. 8 Bhanwarsingh is undoubted including exhortation made by him, goes to show with all certainty that he was present on the spot and exhorted the accused persons for the acts referred above. Samarathsingh was also one of the participants as he also caused injuries to Vijaykunwar. Accused Rajendrasingh Ishwarsingh and Jujharsingh climbed over the roof and set the house to fire. This fact has been stated by three witnesses P.W. 6 Balusingh, P. W. 7 Shivkumari and P.W. 8 Bhanwarsingh also. Thus the misdeed of Samarathsingh, Rajendrasingh Ishwarsingh and Jujharsingh cannot be doubted. Their presence and their misdeeds have rightly been accepted by the trial Court. In the opinion of this Court, therefore, it has been proved beyond reasonable doubt that accused Sagarsingh, Samrathsingh, Rajendrasingh, Ishwarsingh and Jujharsingh were present on the spot. There is no manner of doubt about their presence. The three accused i.e. Rajendrasingh, Ishwarsingh and Juharsingh set the house of Balusingh to fire at the exhortation of Sagarsingh.
18. Samrathsingh also participated and shared the common object as on request made by Vijaykunwar he assaulted her to facilitate the misdeed of setting the house to fire.
19. In the opinion of this Court, therefore, the other accused persons (i.e. other than Sagarsingh, Samarathsingh Rajendrasingh, Jujharsingh and Ishwarsingh) are entitled to benefit of doubt. Thus, Ganpatsingh, Mahendrasingh, Pappu @ Prajapalsingh and Govindsingh deserve acquittal.
20. Now so far as the sentence is concerned, the accused persons in the open definance of law have not only caused injuries to the complaint party but set the house to fire endangering the life of Balusingh, Shivkumari and Bhanwarsingh, knowing it fully well that they are inside the house. Every man’s house including the hut of a poor person is a castle and no-body has a right to destroy it or commit trespass otherwise the same would be taken to be an – aggravated offence. Accused persons have been sentenced to R. I. for four years under Section 436 r/w 149, I.P.C. The manner is which the whole incident has taken place the accused persons do not deserve any clemency.
21. However, the ends of justice would be met if the sentence of imprisonment under Section 436 r/w 149 is slightly reduced and the accused persons are burdened with payment of fine with a further direction of payment of compensation to Balusingh whose house had been set to fire.
22. As a result the appeal of accused Ganpatsingh, Mahendrasingh, Pappu @ Prajapalsingh and Govindsingh is accepted. They are acquitted of all the offences by extending the benefit of doubt.
23. The appeal of accused-appellants Sagarsingh, Ishwarsingh, Rajendrasingh, Jujharsingh and Samrathsingh is dismissed to the extent of conviction under Sections 147, 436/149, 323 r/w. 149 of I.P.C., and sentences passed against them under Sections 147, 323 r/w. 149 of I.P.C., is also cofirmed. The appeal partly succeeds with respect to sentence under Section 436 r/w 149 of I.P.C. only and they are sentenced to R. I. for two years each with a fine of Rs. 3000/- each in default of payment of fine R. I. for ten months each. Fine if recovered, Rs. 10,000/- be paid to Balusingh and Vijaykunwar jointly for the loss to the property and injuries caused to them.
Substantial sentences of imprisonment shall run concurrently.