1. Four accused were charged for offence under Sections 147/452 of IPC for being the members of an unlawful assembly along with others and having committed house trespassing by entering into the house of the deceased Jagdish Ram and for having made preparation for causing hurt to him. One of them Khirodhar Nayak, who is appellant No. 1, was further charged for offence under Section 302, IPC for committing the murder of Jagdish Ram. The other three accused including appellant No. 2 were also charged for offence under Sections 149/302, IPC for being members of unlawful assembly in prosecution of common object of committing murder of Jagdish Ram by burning him. The court of sessions acquitted two of the accused, namely Jagdam Pandey and Doman Mahto holding that there is no specific allegation against them about any overt act and that the prosecution had failed to establish charge against them beyond the reasonable doubt. Appellant No. 1 was convicted for offence under Sections 302/452 and 147, IPC. Appellant No. 2, namely Jiblal Mahto was convicted under Sections 302/149 and 452 and 147, IPC. Both the accused were sentenced to undergo life imprisonment.
2. The state did not challenge the acquittal of Jagdam Pandey and Doman Mahto. The two convicted accused challenged the judgment of court of sessions by preferring a common appeal before the High Court. Their conviction and sentence having been maintained, they have filed this appeal on grant of leave.
3. The FIR was recorded on the statement of the deceased himself. He has stated that he was a teacher in government primary school at village Kheto. After about five minutes of his reaching his house at about 4.00 p.m. appellant No. 1 along with 10-15 persons came there. He was pushed into his house, kerosene oil was sprinkled on him and he was set on fire. As a result of which he sustained burn injuries all over the body. There was dispute between the deceased and the appellant No. 1 over the distribution of some money. The statement of the deceased on basis whereof the FIR was registered, was recorded after about three hours of the incident of burning. The incident took place at 4.20 p.m. The statement of the deceased was recorded at 7.45 p.m. The formal FIR was recorded at 9.30 p.m. In his statement the deceased, inter alia, stated that both the appellants accompanied by 10-15 persons had come to his residence when he was pushed inside the house and after sprinkling about four litres kerosene oil he was burnt. It further records that it was only appellant No. 1 who sprinkled kerosene oil on him and set him ablaze. The unlawful assembly also included appellant No. 2 as also Jagdam Pandey. As earlier noticed, Jagdam Pandey was acquitted by the court of sessions. The dying declaration of the deceased was recorded by the medical officer in-charge Shri Jai Prakash PW-8 at 8.10 p.m. In that statement besides naming the appellants the other person that has been named was Jagdam Pandey. It also records that Jiblal Mahto, appellant No. 2 was also present. He is alleged to have said that the deceased should not be left alive. Soon after making the statement Jagdish Ram died. The prosecution, besides PW8, examined other witnesses being PW1, PW3 to PW6. The prosecution, however, did not examine the investigating officer. The eye-witnesses PW1 and PWs3 to 6 were all declared hostile. It may be noticed that these witnesses were resident of the same village as the appellants and the deceased hailed from a different village. The trial court on appreciation of evidence, in particular the dying declaration, the testimony of PW8 Dr. Jai Prakash and the fard beyan of Jagdish Ram found the appellants guilty as noticed hereinbefore. The conviction was maintained in appeal by the High Court.
4. We have heard Mr. Ranjit Kumar, learned counsel for the appellant in support of the appeal and have examined the record. In our view, the dying declaration exhibit 4 has been rightly relied upon by the High Court so also the testimony of PW8 so far as the case against appellant No. 1 is concerned. We see no reason to take a view different than that has been taken by the High Court in affirming the conviction of appellant No. 1.
5. In so far as appellant No. 2 is concerned, we find it difficult to take a different view against him than that was taken in respect of Jagdam Pandey. Jagdam Pandey like appellant No. 2 was named in the fard beyan. He was also named in the dying declaration. He too was charged for an offence with aid of Section 149, IPC but was acquitted on finding that no overt-act has been established and that the prosecution had failed to establish the charge against Jagdam Pandey. The acquittal of Jagdam Pandey was not challenged by the state. Having perused the record we find that the case of Jiblal Mahto - appellant No. 2 is substantially similar to that of Jagdam Pandey. As already noticed in the fard beyan the deceased had specifically stated that it was appellant No. 1 who had sprinkled oil and set his body ablazed. In this state of affairs, the conviction and sentence of appellant No. 2 cannot be sustained.
6. For the aforesaid reasons, we dismiss the appeal in so far as appellant No. 1 is concerned. The bail bonds of appellant No. 1 are cancelled and he shall be taken into custody forthwith to undergo remaining portion of sentence. The appeal of Jiblal Mahto, appellant No. 2 is, however, allowed. The conviction and sentence imposed upon him is set aside. His bail bonds are discharged. The appeal is disposed of accordingly.