ONKAR Vs. STATE OF M.P.

JUDGEMENT

(1.) This appeal is by the accused against their conviction under section 436, Indian Penal Code and the sentence of 6 months' rigorous imprisonment and a fine of Rs. 50 or, in default, rigorous imprisonment for 1 month, passed by Shri K.B. Patil, Sessions Judge, East Nimar, Khandwa, in Sessions Trial No. 11 of 1958, dated 29 -7 -1958, accepting the verdict of the jury, finding the appellants guilty of the said offence and holding them not guilty of an offence under section 323, Indian Penal Code.

(2.) THEREFORE , the learned Judges, in the said, case set aside the conviction of the accused and the sentence passed on them and sent the case back to the trial Court to readmit the case to its original number on the file and after hearing the arguments consider whether the trial Judge would express disagreement with the verdict or not and if so, make a reference under section 307, to the High Court or uphold the verdict or convict the accused and pass suitable sentences.

(3.) THE prosecution case was that on 11 -10 -1957 at about 10 in the night, the present appellants, along with some others, who were discharged by the committal Magistrate, set fire to the residential hut of Mallu (P.W. 1). The first information report was lodged by Mallu (P.W. 1) on the next day at about 12.15 in the noon. The defence was that Mallu (P.W. 1) and his son Nathu (P.W. 3) and Lakhmiya (P.W. 6) were drunk and in a state of drunkennese Mallu (P.W. 1) himself set fire to his hut and when other people including Tinofilus Milton Rao Ji (D.W. 3) and Gopalrao (D.W. 4), went to extinguish the fire, Mallu (P.W. 1) stood there with a gun and said that he would shoot anybody, who tried to extinguish the fire. According to the defence, these two defence witnesses seized the gun from Mallu and deposited it with Babulal Patel (D.W. 1), who in his turn deposited the same at the police station house.