Judgment

K. JAYACHANDRA REDDY, J. - The occurrence, which is the subject matter of this case, manifests how savage and barbarous human beings can be and to what extent they can be cruel with utter disregard to human life. Kestara is a small village in Durg District with a population of about 300 people. A gruesome massacre took place on the evening of 24-1-82. 14 persons, men, women, children and even infants belonging to a Satnami family (scheduled caste) of one Gangaprasad were killed. Their house was set on fire. The inmates who were trying to flee, were caught, killed and thrown into the raging flames. The next morning when the police party arrived, six charred bodies were recovered from the burnt house. The police also found seven partly burnt and brutally cut bodies lying scattered near the house. Later charred skull and bones of one more body were recovered from the house. In respect of this occurrence 44 persons mostly belonging to Rawat caste and some others were prosecuted and two of them were found absconding. One Sadru died during the pendency of the trial. Ultimately 41 accused stood the trial before the learned Sessions Judge, Durg. The case mainly rested on the evidence of P.W. 7 Bhawanibai and P.W. 8 Bhagabai, the two ladies eye-witnesses who were also members of that unfortunate family. The trial Court was not prepared to place reliance on their evidence and accordingly acquitted all the accused. The State filed an appeal against the order of acquittal. The High Court, however, refused to grant leave as against 10 accused. During the pendency of the State appeal, two accused namely Jhulu and Ghanaram. expired and the appeal stood abated as against them. As against the remaining accused, the High Court examined the appeal filed by the State and ultimately convicted 21 of them under Section 148 and sentenced each of them to undergo two years R. I. They were also convicted under Sections 302/149 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each and they were further convicted u/Ss. 436/ 149 I.P.C. and sentenced to 10 years R. I. The sentences were directed to run concurrently. The acquittal of remaining accused was confirmed by the High Court. Aggrieved by the same, the present appeal under Section 2 of the SC (Enlargement of Criminal Appellate Jurisdiction) Act has been filed by the 21 convicted accused.

2. There was a longstanding faction between the family of the deceased and the Rawats and Brahmins of village Kestara. There were criminal as well as other cases filed against the family of the deceased Gangaprasad as well as against Rawats and Brahmins. Proceedings u/Ss. 107/116, Cr. P.C. also were initiated against the adult male members of the deceased family and the Rawats. The fact about enmity between these two rival groups is not in dispute. Because of this enmity between family of the deceased Gangaprasad and the Rawats, there had been a fight between GangaPrasad and his brother on one hand and Ramdayal, Shivprasad and Bijeram on the other hand. As soon as Rawats and Brahmins of the Village learnt about this fight, they surrounded the house of deceased Gangaprasad. A hay-stack was kept outside the house and the house was set on fire by sprinkling kerosene and then throwing burning hay thereon. The inmates who tried to run away, were attacked one by one by sharp weapons. Some children and women were trapped inside the house and some were killed and then thrown into the flames. P.W. 2. Kotwar Bisahuram who had gone to the neighbouring village Mutpuri to hear Ramayan was informed about the fight and he rushed to Kestara. On the way he also saw the accused Ramdayal, Bijeram and Shivprasad being taken away in bullock carts. When he reached the village, he found that the house of Gangaprasad was in flames and he also saw the dead bodies. Immediately he set out for reporting the matter to the police station and reached the same at about 10.45 P.M. and lodged the report. A