MUKHERJEE, J.

(1) IN Sessions Case No. 122 of 1989 on the file of the Additional Sessions Judge, Fourth court. Thane, seven persons were arraigned for rioting, five murders and other related offences. While acquitting two of them, the trial Judge convicted the other five under S. 147, 342/149, 440/34 and 302/149 Indian Penal Code and sentenced them to different terms of imprisonment, including life, and fine. Aggrieved thereby the five convicts (who were arrayed as A-1 to A-5 in the trial court) preferred appeals in the High court which were dismissed. Assailing the dismissal of their appeals three of them, namely A-2, A-3 and A-4 have filed these appeals which have been heard together and this judgment will dispose of them.

(2) BRIEFLY stated the prosecution case is as under:

(A) In the Waldhuni area of Kalyan City the Railways own a number of buildings, rooms of which are allotted to its employees. Eknath Brahmane (Public witness 4, is one of such employees who was allotted Room No. 7 on the ground floor of Building No. 1003. That room was used by the two sons of Eknath, namely, Manohar and Sanjay as their study; and Eknath along with his other family members lived in a nearby chawl;

(B) Two and a half months prior to the incident with which we are concerned in these appeals, Eknath and his friend Rajesh were arrested for attempting to commit the murder of Baksh Jamalkhan Pathan, brother of Amir Jamal Khan Pathan (A-1 and, a week before the incident, they were released on bail. Since the attempt was made to commit the murder of his brother A-1 bore a grudge against them.

(C) In the night of 20-10-1988 Sanjay along with his brother Manohar and friends Rajesh, Harshad and Romi was sleeping in their study. At or about 3.45 a.m. they woke up on hearing some noise from outside the window and found their beds splashed. They immediately got up and saw the accused persons pouring petrol inside the room through the window. Thereafter they set the room on fire by throwing an ignited matchstick and left bolting the door from outside.

(D) A little later when Kanhayalal, a regular milk supplier to the residents of the railway quarters, reached there he detected some fire in Room No. 7. He immediately sent information to the family members of Rajesh and to Eknath. On receiving that information they rushed there and found the room locked from outside and fire inside. Eknath unlocked the room and saw Sanjay, Harshad and Romi lying dead on the floor of the room and Rajesh and Manohar in the bathroom in a critical condition. All of them had burn injuries on their persons.

(E) Eknath immediately reported the incident to the police station over telephone and arranged to send Manohar and Rajesh to Ulhasnagar central Hospital. On receiving the telephonic message Inspector Nanavade reached the spot and having learnt that the condition of Manohar and Rajesh was deteriorating issued direction to SI Tulshiram (Public witness 20 to get their statements recorded by a Magistrate. The services of Dr Prem Narayan Talareja (Public witness 16, a Special Executive Magistrate, were accordingly requisitioned. He went to the hospital and recorded their statements (Exhs. 59 and 60). A formal complaint of Rajesh was also recorded by SI Shripat Malache (Public witness 20) and on that complaint the police registered a case and took up the investigation. As the condition of Manohar and Rajesh was serious, they were transferred to K.E.M. Hospital, Bombay where the former died on 26/10/1988 and the latter on the following day. On completion of investigation the police submitted a charge-sheet and in due course the case was Committed to the court of Session.

(3) AT the outset, we may point out that the prosecution case, to the extent it sought to prove that the above-named five boys were set on fire while they were sleeping inside Room No. 7 of Railway Building No. 1003 and that owing to bum injuries they met with their death stands