M.L. Shrimal, J.
1. Thirteen accused persons viz. Raju, Ocarina, Serial, Ghewaria, Moti, Jairam, Hanuman arid six other accused (acquitted by the trial court) were tried by the learned Additional Sessions Judge. No. 1, Jodhpur in connection with an occurrence which took place on March 26. 1975. In the course of that occurrence, the 'Jhumpa' of P.W..4 Kesia was set to fire; and P.W. 1 Dhanrii, P.W. 2 Dalla. P.W. 3 Kisturi, P.W, 4 Kesia, P.W. 5 Sohanki, P.W. 6 Khinwada were injured at the hands of the accused. The learned Judge acquitted all the accused of all the charges, punishable under Sections 148 and 452 IP.C, He convicted the accused-appellant Raju under Section 436 I.P.C., and sentenced him to four years' rigorous imprisonment, and to pay a fine of Rs. 100/; in default of the payment of which to further undergo rigorous imprisonment for a period of four months. In addition to that he was convicted under Sections 323 and 323 read with Section 149 I.P.C, and was sentenced to six months' rigorous imprisonment. He was also convicted under Section 147 I.P.C. and was sentenced to four months' rigorous imprisonment, and to pay a fine of Rs. 50/-; in default of the payment of which to further undergo rigorous imprisonment for one month. The remaining appellants viz. Godariya, Seriya, Ghewariya, Moti and Jairam were acquitted of the charges punishable under Section 436 read with Section 149 I.P.C. Each of them was convicted under Sections 323 and 323 read with Section 149 I.P.C, and sentenced to six months;' rigorous imprisonment. In addition to that each of them was convicted under Section 147 I.P.C. and sentenced to four months' rigorous imprisonment and to pay a fine of Rs. 50/-; in default of the payment of which to further undergo one month's rigorous imprisonment. The substantive sentences in the case of each of the appellant have been ordered to run concurrently. The accused Harman was convicted under Sections 323, 323/149 and 147 I.P.C. but the benefit of Section 4 of the Probation of Offenders Act was extended to him. The remaining six accused were acquitted by the learned Additional Sessions Judge.
2. Tersely speaking and shorn of all unnecessary, details the prosecution story in a nutshell is that the accused persons had an impression that the members of the complainant party were running brothel houses affecting adversely the moral of the other residents of the village. On March 26, 1975 all the accused including the appellants formed themselves into an unlawful assembly, the common object of which was to give a beating to Khinwada and his other relations so that they may be driven out of the village vicinity. It is alleged that nearly at 10 p.m. all of them, after being armed with 'Gedies', came to the place where the members of the complainant party used to reside. They threw stones and thereafter, entered into the premises where P.W. 1 Dhanni, P.W. 2 Dalla, P.W. 3 Kisturi, P.W. 4 Kesia and P.W. 5 Sohanki and P.W. 6 Khinwada were sleeping. The accused persons belaboured the members of the complainant party and accused Raju set fire to the hut of P.W. 4 Kesia. A first information report of this occurrence was lodged by P.W. 6 Khinwada at the Police Station, Pipar City at 10.30 p.m. P.W. 8 Avtar Singh registered a case against the accused, and came on the scene of occurrence. He found the 'Jhumpa' of P.W. 4 Kesia burning. According to him all the articles lying inside the 'Jhumpa' including the doors of the 'Jhumpa' were burnt to ashes at the time when he reached the spot. A site-plan Ex. P. 8 and the site-inspection memo Ex. P. 9 were prepared on the spot on March 27, 1975 by P.W. 8 Avtar Singh. The injured persons Were clinically examined by P.W. 7 Dr. P.P. Gandhi, and their injury reports are Ex, P. 2 to Ex. P. 7. The Police after usual investigation submitted a challan in the Court of Munsiff-Magistrate, Bilara, who committed all the thirteen accused for trial to the Court of learned Sessions Judge, Jodhpur and thereafter, the case was transferred to the Court of learned Additional Sessions Judge, No. 1, Jodhpur. The accused pleaded not guilty to the charge.
2-A. The prosecution examined nine witnesses in support of their case, out of whom P.W. 1 to P.W. 6 are the injured persons and the eye-witnesses of the occurrence. P.W. 7 Dr. P.P. Gandhi was examined to prove the injuries sustained by P.W. 1 to P.W. 6. P.W. 8 Avtar Singh is the Investigating Officer of this case and P.W; 9 Bhinyaram is the Panchanama witness who was declared a hostile witness. The accused persons denied their complicity in the crime and examined four witnesses in support of their defence The learned Judge held the defence witnesses unreliable. Placing reliance on the statements of the eye-witnesses, the first information report Ex./P. 1, and the statement of P.W. 7 Dr. P.P. Gandhi, the learned Judge convicted, the accused-appellants as mentioned above The convicted accused except Harmah have come up in appeal before this Court,
3. Mr. Bhansali, learned Counsel for the accused-appellants, has vehemently challenged the findings of the trial court. He urged that there are certain outstanding features which are sufficient to throw doubt on the entire prosecution case. It has been urged that the prosecution' witnesses are interested and partisan witnesses and that the occurrence could not have taken place in the manner suggested by the prosecution. It was not possible for the witnesses to exactly locate the person as to who out of the thirteen accused persons set fire to the thatched roof of the 'Jhumpa'. It was further urged that a large number of persons had come in the 'Ger' and it was not possible for the witnesses to state as to whose stone hit the particular person. In the first information report Ex. P. 1 the parentage of the thirteen accused persons has been mentioned whereas P.W. 6 Khinwada admitted in cross-examination that he knew the parentage of only five or six accused persons. He was given an opportunity to explain the discrepancy appearing in his statement recorded in the trial court, and the first information report, but the witness failed to. explain it, According to the learned Counsel this discrepancy is suggestive of the fact that the first information report of this occurrence was lodged after the Investigaing Officer had appeared on the scene of the occurrence and not at the time when it is purported to have been filed, and that the Jhumpa' which is said to have been set on fire cannot be termed to be a built house for human dwelling, or a place for the custody of property. The learned Counsel for the State has supported the judgment of the trial court.
4. The motive, showing the cause of this incident, as disclosed in the first information report, was that the 'Jhumpas' occupied by the members of the complainant party were being used for the purpose of illicit intercourse, and prostitution, which infuriated the members of the accused party and they wanted the complainant and his associates to leave the village. None of the witnesses examined on behalf of the prosecution has Supported, this part of the first information report by making a positive statement on oath. In the absence of legal evidence it cannot be said that the motive for the commission of the crime stands proved against the accused beyond reasonable doubt. The proof of. motive satisfies the judicial mind about the likelihood of the authorship of the crime, but its absence only demands deep search, and cannot, undo the effect of the evidence, if otherwise sufficient.
5. It is a fact that the prosecution witnesses examined in this case are close relatives and interested persons, but it is also a fact that all the six eye-witnesses are injured persons. A perusal of their injury reports, and the statement of P.W. 7 Dr. P.P. Gandhi is suggestive of the fact that they must have sustained the injuries in the same occurrence, and as such their presence, on the scene of occurrence at the time of assault, cannot be doubted. All the eye-witnesses have slated that the stones were being thrown towards P.W. 6 Khinwada and others by the accused persons from the side of the 'Pal'. P.W. 4 Kesia admitted in cross-examination that there were near about 40 or 50 persons at the 'Pal', who were members of the 'Ger' party. In the site-plan Ex. P. 8 the distance between the 'Pal' and the outer-portion of P.W. 4 Kesia's 'chhappar' has been shown as 12 'Kadams i.e. 30'. As mentioned in the first information report, the inhabitants of the village were inimically disposed towards the members of the complainant party. The place of occurrence is adjacent to the houses of the appellants and other residents of the village. Admittedly, 40 or 50 persons who were members of the 'Ger' party cannot be termed to be the members of the unlawful assembly. As such in order to convict the accused for causing assault by stone throwing it is necessary to prove that as to whose stone hit which particular member of the complainant party. As the accused persons, while flicking stones, were at a distance of more than 30' from the place where the members of the complainant party were sleeping, it would be very risky to convict any of the accused for causing the injuries by throwing stones on the members of the complainant party, because in a melee it was practically impossible for the prosecution witnesses to identify the particular accused as to whose stone hit, whom on the side of the complainant.
6. In the 'Ger' the assailants as well as the others had assembled. The 'Jhumpas' of P.W. 4 Kesia and others were located at a little distance from the houses of the other villagers. As such all those persons who had assembled in the 'chowk' where P.W. 4 Kesia and others were sleeping could not be condemned ipso facto as being the members of the unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants before this Court had formed an unlawful assembly and had done or had committed some overt act in prosecution of the common object of the unlawful assembly.
7. The evidence in general terms to the effect that all the appellants and some others (acquittedby the trial court), were the miscreants and were armed with 'Gedies' cannot be of much use to the prosecution in the facts and circumstances of this case. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate the chances of false or mistaken implication. The case of each individual accused has therefore to be examined to satisfy that mere spectators who had not joined the assembly and who were unaware of its motive had not been treated as members of the unlawful assembly which committed the crime.
8. In the first information report Ex. P. 1 it has been mentioned that the accused Moti exhorted the other persons to beat the 'Satias' (members of the complainant party) and drive them out. It has not been mentioned that he inflicted any injury to any person. P.W. 6 Khinwada the author of the first information report failed to state on oath that the accused-appellant Moti exhorted others to commit assault on 'Satias'. P.W. 2 Dallas no doubt stated that the accused-appellant Moti exhorted others to beat the 'Satias', whereas P.W. 1 Danny stated that Moti, Preamp, Jairam and Radiogram asked others to beat. P.W. 3 Kist Uri also stated that all the accused-appellants standing on the 'Pal' stated that 'Satias' may be beaten and they may not be allowed to live there. P.W. 5 Shank also stated that all the accused asked the witness and others to leave the place, otherwise they would be beaten. She further stated that the accused inflicted injuries with stones and 'lathis' on the members of the complainant party. Thus, the evidence regarding exhortation and formation of unlawful assembly by the accused-appellants is highly conflicting, and no reliance can be placed on it for convicting any of the accused-appellant under Section 147, I.P.C.
9. P.W. 2 Dalla stated that the accused-appellants Seriya, Jairam and Ghewariya were armed with 'Gedies' at the time of the assault. Rest of the accused had stones in their hands. P.W. 6. the author of the first information report, has stated that ten persons entered his premises, and some of them were armed with 'Gedies' and some were armed with stones. At that time Jairam, Ghewariya and Seria had 'Gedies' in their hands and rest of them had stones. A bare look at the charges framed against the accused-appellants reveals that none of them has been charged for causing injuries with 'lathis'. Thus, from the statements of the prosecution witnesses not more than three accused viz. Jairam, Ghewariya and Seria can be held responsible for committing the offence under Section 323, I.P.C.
10. P.W. 1 Dhanni stated that the accused-appellant Jairam inflicted a 'Gedi' blow on her knee. P.W. 6 Khinwada stated that Mst. Dhanni (P.W. 1) was beaten by Jairam, accused-appellant with a 'Gedi'. In the first information report it has been mentioned that the accused-appellant Jairam son of Madha inflicted a lathi-blow to Mst. Dhanni. P.W. 7 Dr. P.P. Gandhi stated that on March 27, 1975 he clinically examined Mst. Dhanni (P.W. 1) and located a wound 3/4' x 1/2' x 1/4' on the lateral condial of right femur. Thus, it stands proved from the above evidence that the accused-appellant Jairam caused injuries to Mst. Dhanni with a 'Gedi'.
11. Now I take up the case of accused Ghewariya P.W. 3 Kisturi stated that all the accused were armed with stones and none of them had any weapon in their hands, In face of this statement it cannot be said that the accused Chewariya inflicted a 'Gedi' blow to P.W. 3 Mst. Kisturi and the statements of the other witnesses made contrary to the siatement of P.W. 3 Mst. Kisturi cannot be held sufficient, to convict the accused-appellant Ghewariya for causing the injuries to P.W. 3 Kisturi with a 'Gedi'.
12. As regards the accused Seria, P.W. 2 Dalla staled that he inflicted a lathi-blow to him. P.W, 6 Khinwada also stated that the accused-appellant Seria inflicted a 'Gedi' blow to P.W. 2 Dalla. P.W. 7 Dr. P.P. Gandhi stated that on March 27, 1975 he clinically examined P.W. 2 Dalla and noticed the following injuries on his person:
1. A bruise l 1/2' x 1' on the posterior aspect of the upper third of left forearm.
2. Lacerated wound 1' x 1/2'' x 1/2' transversely placed on the left frontal region just inside the hair margin.
3. An abrasion 3/4'' x 1/2' on the lateral aspect of right elbow bone.
He further stated that the injuries enumerated in Exs. P. 2 to P. 7 could be caused by blunt weapon and they could all be caused by stones and lathis. The duration of the injuries was about 12 hours. Thus from the above evidence it stands proved beyond any manner of reasonable doubt that the accused Seria inflicted lathi-blows on the person of P.W. 2 Dalla.
13. A perusal of the statements of the prosecution witnesses shows that the evidence against the accused Raju. Godariya and Ghewariya regarding infliction of the injuries and the nature of the weapon of offence in their hands is not consistent and it will not be safe to uphold the conviction of the above mentioned three accused persons under Section 323 and 323 read with Section 149 I.P.C. On the basis of omnibus allegation in the first, information report as well as the conflicting evidence in the court, it cannot be held beyond reasonable doubt that they were members of the unlawful assembly or they participated in assaulting any of the members of the complainant party.
14. Now remains the case of accused-appellant. Raju, Regarding his conviction under Section 436 I.P.C. P.W. 1 Dhanni stated that the accused persons told in a tell-tale manner 'let them be done to death'. Saying this, they broke the utensils made of clay and the accused-appellant Rajuram set fire to their Jhumpas', cuts, clothes and other articles lying in the 'Jhumpa' were burnt to ashes causing loss of nearly Rs. 1000/-. In cross-examination she stated that three 'Jhumpas' were situated there, one of which belonged to her father, and was burnt to ashes, the other 'pucca' one belonged to her brotherin-law and the third belonged to her sister. Kisturi. There were two cots, few clothes of wearing, and 2 Mds, of 'Bajra' and some utensils inside the 'Jhumpa' which was set on fire, This witness has been cross-examined in detail. In spite of lengthy cross-examination nothing has been brought out on the basis of which the veracity of her statement regarding Raju's setting fire to the 'Jhumpa' can be doubted. P.W. 2 Dalla stated that the accused-appellant Raju set on fire a house. This witness under cross-examination stated that on the basis of information given by his father-in-law and mother-in-law, he came to know that Raju-accused-appellant had set fire to the 'Jhumpa'. In these circumstances the statement of this witness cannot be relied upon to convict the accused-appellant Raju under Section 436 I.P.C. P.W. 3 Kisturi in her examination-in-chief stated that the 'Jhumpa' was set fire to by the accused-appelant Raju. She further stated in the course of her cross-examination that she came to know about the burning of the 'Jhumpa' when she saw the flames coming out of the 'Jhumpa', Thus she cannot be termed to be an eye-witness regarding setting fire to the 'Jhumpa' by the accused-appellant Raju. P.W. 4 Kesia in examination-in-chief stated that Jairam had set fire to the 'Jhumpa' but under cross-examination the witness stated that the accused-appellant Raju was sitting on the 'Jhumpa'. who set fire to it by lighting a match-box. Thus this witness has made two contradictory statements and it will not be safe to rely upon his statement regarding the accused-appellant Raju. P.W. 5 Sohanki made a general and vague statement that the accused persons set fire to the 'Jhumpa'. and this general statement cannot be held sufficient to connect the accused with the crime. P.W. 6 Khinwada stated that the accused-appellant Raju set fire to the house by lighting a match box. The witness further stated that in that house the clothes, utensils, and 2 Mds. of food-grains were burnt to ashes. The statement of this witness stands corroborated by the statement of P.W. 1 Mst. Dhanni as well as by the statement of P.W. 8 Avtarsingh. Investigating Officer, the site-plan Ex. P. 8 and the site inspection note Ex. P. 9. The first information report of the occurrence was lodged at 10.30 p.m. on the date of the occurrence, within 30 minutes of the occurrence. The author of the first information report must have got stunned because of the sudden occurrence in the course of which six persons including himself sustained injuries. Some time must have been spent by him for making an attempt to extinguish the fire. This first information report lodged at the Police Station contained all the material facts. It has been specifically mentioned therein that the accused-appellant Raju set fire to the 'Jhumpa'. This first information report lends considerable corroboration to the ocular evidence adduced at the trial by P.W. 6 Khinwada and P.W. 1 Mst, Dhanni regarding setting, fire to the 'Jhumpa' belonging to P.W. 4 Kesia by the accused-appellant Raju. The learned Counsel for the accused-appellants urged that in the first information report the parentage of all the thirteen accused has been mentioned, whereas in cross-examination P.W. 6 Khinwada admitted that he knew the parentage of only 5 to 6 persons. This fact cannot be of much importance in the facts and circumstances of this case because according to P.W. 6 Khinwada one Durga had accompanied him to the Police Station, at the time of his lodging the first information report and the contention of the learned Counsel for the State is probable that the Police authorities might have ascertained the names of the parents of the accused from Durga. Besides this, P.W. 6 Khinwada has stated that he knew the parentage of Raju accused-appellant and as such the question of misidentification does not arise. The previous enmity between Raju accused-appellant and P.W. 6 Khinwada has not been established. No reason has been shown as to what made P.W. 6 Khinwada to incriminate Raju accused-appellant for committing the offence punishable under Section 436 I.P.C.
15. It was urged by the learned Counsel for the accused-appellants that the Investigating Officer did not seize the ashes and broken pieces of the utensils and as such in the absence of corroborative evidence it should not be held that the 'Jhumpa' was burnt to ashes. I am unable to agree with this contention. All the six eye-witnesses have unanimously stated that the 'Jhumpa' belonging to P.W. 4 Kesia was burnt to ashes. They have also stated that this 'Jhumpa' was being used as a dwelling house and the articles were stored therein. A perusal of Ex. P. 8 and Ex. P. 9 along with the statement of P.W. 8 Avtar singh reveals that the 'Jhumpa' had doors which were also burnt to ashes, and at the time when he made the site-inspection, he noticed that the doors of the 'Jhumpa', wearing clothes, beddings were burnt to ashes, and the broken pieces of utensils were also lying there. I do not feel persuaded to agree with the contention of the learned Counsel for the accaused-appellants that even if the prosecution case is believed then also what has been proved is that the accused set fire to a thatched shade and as such the accused-appellants cannot be held guilty under Section. 436, I.P.C. The meaning of the word 'building' cannot be restricted only to the constructions made with the help of materials generally used for constructingthe 'pucca' structure. If such a narrow construction would be given then the courts would be met with, a difficult situation-wherein only the 'pucca' buildings of richer section of the society would be protected and the 'kachcha' structures of the huts used by poor persons would be found outside the purview of the protection of Section 436 I.P.C. The dominant intention of the legislature in framing Section 436 I.P.C. was to give protection to those buildings which are used as human dwellings or as places where the properties are stored for custody. The 'kachcha' 'Jhumpa' with a thatched roof closed by doors and shutters in which the grain and other articles were stored comes within the meaning of 'building' given in Section 436 I.P.C. and can be very well termed to be a place for the custody of property. Poverty is no sin. A poor man with scanty means is bound to live in grass or mud huts and places whatever articles he has therein, not out of his own choice, but out of necessity, which he cannot help. For the reasons mentioned above, I am satisfied that the prosecution has been able to bring home the guilt to the accused-appellant Raju.
16. Lastly, it was urged that the occurrence is of March 1975. The appellants were convicted on April 23, 1976 and the accuseds-appellant Raju is in custody since that date. The other accused had faced a protracted trial and a lenient view in the matter of sentence may be taken and the sentence may be reduced to one already undergone or the benefit of Section 4 of the Probation of Offenders Act may be extended to them.
17. Accused-appellanls Jairam and Seriya have been held guilty by me of the offence punishable under Section 323 I.P.C. which is not an offence of very serious nature. No useful purpose will be served by sending them to jail. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. The present trend in the field of penology is that effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Keeping in view the nature and the attending circumstances of the offence I consider it proper to give these two accused-appellants - Jairam and Seriya the benefit of the Probation of Offenders Act. It has been conceded by the learned Deputy Government 'Advocate that this Court _can make an order under the Act on the existing material on the record without seeking any information from the Probation Officer.
18. As regards accused-appellant Raju, it would be sufficient to say that the provisions of the Probation of Offenders Act are inapplicable to the case of the accused-appellant Raju in view of his conviction under Section 436 I.P.C. which is punishable with imprisonment for life.
19. The net result of the above discussion is that the appeal in respect of the accused-appellants Godariya, Ghewariya and Moti is allowed, and their conviction and sentences awarded by the learned Additional Sessions Judge under Sections 323, 323 read with Section 149 and 147 I.P.C. are set aside, and they are acquitted of all the charges framed against them. They are on bail, and need not surrender to their bail bonds.
20. The conviction of the accused-appellant Raju by the trial court under Sections 323, 323 read with Section 149 and 147 I.P.C. cannot be said to be well founded. I, therefore, accept his appeal to the extent of setting aside his conviction and sentences awarded to him under Sections 323, 323 read with Sections 149 and 147 I.P.C. but his conviction under Section 436 I.P.C. is maintained, and the sentence of four years' rigorous imprisonment and a fine of Rs. 100/- is reduced to one year's rigorous imprisonment and a fine of Rs. 100/-; in default of the payment of which the accused-appellant Raju is to undergo rigorous imprisonment for a further period of one month.
21. The appeal in respect of accused-appellants Jairam and Seria is partly allowed, and their conviction under Section 323 I.P.C. is maintained, but the sentence awarded to each of them under Section 323 I.P.C. by the trial court is set aside. The conviction and sentences awarded to them by the trial court under all other sections are also set aside. Accused-appellants Seria and Jairam are extended the benefit of Section 4 of the Probation of Offenders Act. They are on bail, and need not surrender to their bail bonds. Each one of them shall furnish a bond with one surety in the sum of Rupees 2000/- (Rupees Two Thousand) to the satisfaction of the trial court to appear and receive the sentence awarded by the trial court, whenever, called upon to do so within a period of one year from the date of this judgment and during that period to keep peace and be of good behaviour; The accused-appellants Seria and Jairam are allowed one month's time to furnish the personal bonds and the surety bonds to the satisfaction of the trial court, as indicated above, failing which they will undergo the sentence awarded by the trial court. The bail bonds will enure till the time these directions are carried out, after which they will be deemed to be cancelled.
22. It is, however, made clear that the accused-appellant Raju is entitled to claim set off against the term of imprisonment under Section 428, Cr.P.C. the period of detention, if any, undergone by him during the investigation, enquiry or trial of the case, against the term of imprisonment imposed upon him.