Bharat Santa vs State Of Odisha

S.Talapatra, J

The appellant was charged under Sections 458,342,436,307 and 302 of the IPC and also under Section 7 of the Essential Commodities Act. The appellant denied those charges and hence, he was put to a full-fledged trial. On completion of the trial, the Sessions Judge, Nayagarh, by the Judgment dated 19.04.2014 delivered in S.T. Case No.50 of 2011 convicted the appellant under Section 458/342/436/307/302 of the IPC and also under Section 7 of the Essential Commodities Act.

On hearing the appellant, on the question of sentence, the appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand) and in default in payment of fine to undergo R.I. for a further period of one year on each deafult under Sections 302 and 307 of the IPC & to undergo R.I. for 10 years each count for commission of the offences under Sections 436 and 458 of the IPC & to pay a fine of Rs.5,000/- (rupees fivethousand) and in default to undergo R.I. for one year more and to undergo R.I. for one year for commission of the offence under Section 342 of the IPC and further sentenced to undergo imprisonment for one year and to pay a fine of Rs.2,000/- (rupees two thousand) and in default to undergo further period of R.I. of six months for commission of the offence under Section 7 of the Essential Commodities Act. It has been declared that the substantive sentences shall run concurrently. The fine amount, if paid, be given to victim Sarat Santa (the victim), in terms of provision under Section 357 of the Cr.P.C.

The said Judgment and order of conviction and sentence are challenged in this appeal by the convict from the jail.

Briefly stated, the prosecution case is that on the intervening night of 10/11.01.2011 the appellant set fire in the house of his brother namely, Sarat Chandra Santa (P.W.10) after locking the room [of his brother, P.W.10] from outside and using a Gas Cylinder for setting the fire. Somehow, P.W.10 by breaking the door could save his life but his wife and his 10 months’ old baby (son) were burnt alive in the fire. Within a short while, Anadi Charan Mohanty (P.W.3) lodged the information (Ext.1) in Itamati Police Station at about 03.45 am on 11.01.2011, whereas the occurrence took place as per the information at 12.10 am on 11.01.2011. Based on the said information, Itamati P.S. Case No. 1 (1) of 2011 was registered under Sections 342/302/307/436 of the IPC and taken up for investigation. On completion of the investigation, the police report under Section 173(2) of the IPC was filed and in due course, the case was committed to the Court of the Sessions Judge who had framed the charge as stated before. To substantiate the charge, prosecution introduced as many as 16 witnesses (P.Ws.1 to 16) including the eye witnesses namely Uttam Santa (P.W.1), Sarat Chandra Santa (P.W.10) and the informant namely, Anadi Charan Mohanty (P.W.3). The prosecution had introduced as many as 17 documentary evidence (Exts.1 to 17) including the inquest reports (Ext.2 and Ext.3), injury report (Ext.6), post mortem reports (Exts.8 and 9) and the chemical examination report (Ext.17). In the trial, a few articles were admitted in the evidence by the prosecution viz. photographs of the scene of crime (M.O.I to M.O.IV), Gas Cylinder (M.O.V), plastic pipe (M.O.VI), half burnt wooden plank (M.O.VII), half burnt pad lock (M.O.VIII), axe (M.O.IX) and half burnt sweater and cap (M.O.X). The defence has no evidence introduced. After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C to have his response to the incriminating materials those surfaced in the trial. The appellant denied his involvement in the crime and has stated that because of the deep enmity he has been framed in the case.

Having appreciated the evidence, the Sessions Judge has returned the findings, inter alia, that from the evidence of eye witnesses (P.Ws.1 and 2), chance witness (P.W.9), injured witness (P.W.10) and (P.W.11), it is crystal clear that the appellant had committed the murder of Susama Santa (wife of P.W.10) and her baby, Munu Santa by releasing cooking gas into the room in which they were sleeping and setting fire in that room. The appellant confined Sarat Santa (P.W.10), his wife and his baby [son] Munu Santa by locking the door from outside. In the process, Susama Santa and Munu Santa died and being burnt alive. Sarat Santa got burn injuries.

The motive of the appellant has been proved by P.W.11 as P.W.11 was the witness of abuses. The appellant also abused Sarat by saying “To bansa budeidebi” [I would destroy your family]”. P.W.11 is not related either to the family of P.W.10 or to the appellant. The Sessions Judge has discarded the plea of identification of the Gas Cylinder. It has been further observed by the Sessions Judge that there are no incongruities in the fact disclosed in the information lodged in the police station and the fact as proved by the prosecution, in order to drive the charge home. The oral evidence got support from the material objects as introduced in the trial and from the report of the chemical examiner. Even the defence’s plea that there was no proof of presence of liquid petroleum gas in the rubber pipe and hence, inference to have been drawn against the prosecution has been discarded by the Sessions Judge, by observing that liquid petroleum gas being volatile (evaporative) in nature, had evaporated when the actual chemical examination have taken place.

Mr. A. Sahoo, learned counsel appearing for the appellant has strenuously submitted before this Court that there is no legal evidence to support the charge in as much as, as regards the participation of the appellant in the crime, there is no direct evidence. Mother of the appellant (P.W.1) did not state that she had seen the appellant perpetrating the offence of arson or attempting to bolt the door of the room where P.W.10 and his family were sleeping at that night. Mr. Sahoo, learned counsel has agitated that the evidence of P.W.1 clearly reveals that there was long standing enmity between the appellant and his parents and brother (P.W.10). The parents were living with P.W.10 for long time. The evidence of P.W.1, is argued by Mr. A. Sahoo, learned counsel appearing for the appellant is motivated. It has been designed to rope the appellant in commission of the crime. Similarly, the evidence of P.W.11 has been concocted in order to complete the chain by way of placing a piece of evidence on threat by the appellant in the afternoon of the day/day before of the occurrence. While returning the finding of conviction, according to Mr. A. Sahoo, learned counsel appearing for the appellant, the Sessions Judge has misread the testimony of P.W.14 and thus, he came to an inference which must fail in the test as, such inference is not based on the reliable evidence but on assumption.

Mr. A. Sahoo, learned counsel has urged this Court to discount the evidence of P.W.10, Sarat because of the long standing enmity with the appellant. According to Mr. Sahoo, this is a case where this court may interfere the judgment of conviction and the consequential order of sentence.

In support of his contention Mr. A. Sahoo learned counsel appearing for the appellant has placed his reliance on Dr. Sunil Kumar Sambhudayal Gupta –Vs- State of Maharastra, reported in 2011 Cri.LJ 705(SC) in order to place the law how to appreciate the contradiction. Mr. A. Sahoo, learned counsel has placed his reliance on Ganga Bhavani –Vs- Rayapati Venkata Reddy reported in 2013 Cri. LJ 4618 (SC) on appreciation of the eye witness account. When the benefits of doubt would favour the accused on that aspect Mr. A. Sahoo has relied on a decision in Arshad Hussain –Vs- State of Rajasthan reported in 2013 (II) OLR (SC) 1024. Mr. Sahoo, learned counsel has also referred a decision of this court in Jayaram Sahoo Vs State of Odisha, reported in 2022(I) OLR 982 on importance of the evidence of motive in a case based on circumstantial evidence.

Mr. S.S. Kanungo, learned Addl. Government Advocate appearing for the State has, in order to repel the contention of Mr. A. Sahoo, learned counsel appearing for the appellant has submitted that the prosecution case has been proved to the hilt. Mr. S.S. Kanungo, has also contended that the evidence has been clinching to prove the motive and the preparation of the offence as proved by the independent witnesses. There were two witnesses (P.Ws.1 and 2) and the injured witness (P.W.10) who had proved the occurrence of grisly death of wife and baby of P.W.10. If read all the evidence cumulatively, there will be no amount of doubt in holding that the appellant motivatedly set fire in the room where P.W.10 and his family were sleeping, in order to retaliate. Mr. S.S.Kanungo, learned Addl. Government Advocate has quite robustly submitted that animosity has its two sides. It not only prompts someone to concoct by deviating from the real fact but at the same time it gives the motive for perpetrating the crime for retaliation. According to Mr. S.S. Kanungo, there is no sustainable ground to interfere in any part of the finding as returned by the Sessions Judge.

In order to appreciate the rival contentions as advanced by the counsel for the parties, it appears apposite to take a meaningful survey of the evidence as recorded in the trial.

Uttam Santa (P.W.1) has testified in the trial and stated that the informant (P.W.3) is her son-in-law. She has stated that she had 4 sons. One son died pre-maturely. The appellant, P.W.10 and one Balia are her 3 surviving sons. Her daughter is married to P.W.3. Her son Bharat (the appellant) used to live separately in a house at one end of their village. Her son Balia is lame and stays with Rekha. The appellant used to quarrel with all of them including P.W.10. One year and two months before the day of recording the deposition, in the midnight, the occurrence took place when Sarat (P.W.10) and his wife and their son were sleeping in their room. She and her granddaughter with her ‘Jaa’ (wife of brother–in-law) were sleeping in their outer verandah. She has stated thereafter that she saw in the electric light as follows:

“Accused came with a gas cylinder and knocked at the door. I asked him why he came in the late night. He gave a kick over my abdomen. I raised halla. He locked the door of the room where Sarat was sleeping. He alighted a match stick and burnt the Gas Cylinder. Due to such fire, the entire housed gutted. Sarat could get out of the room, but in the fire his wife and son burnt and died. Sarat also received severe burn injuries all over his body. After setting fire, the accused fled away. All four to five houses gutted with fire. Hearing my hulla, many villagers rushed to our house.”

P.W.1 has stated in the trial that the fire-brigade vehicle came and extinguished the fire and she was later, on examined by the police. She was cross-examined by the defence. In the cross-examination carried out by the defence, she has given the details of the rooms, occupied by different members of the family. But for the relevant part which was about the occurrence as highlighted by Mr. A. Sahoo, learned counsel, it appears that she (P.W.1) was not sleeping with her granddaughter near the room of Sarat. She has admitted that she, her husband and Sarat (P.W.10) were not pulling well with the appellant since last 5 years, as the entire cultivable land belonging to the family was being cultivated by P.W.10. The appellant was living away from them. According to her, the electric connection is not in the name of her husband or P.W.10. The following part of cross examination was pressed in service by Mr. A. Sahoo, learned counsel for the appellant:

“I saw the accused while coming with a Gas Cylinder. First I could not identify him in the darkness. The door of the room of Sarat was open when Bharat (the appellant) came there. When he closed the door I raised halla. I cannot say who came to the spot. The Gas Cylinder was kept on the verandah through which all are passing. It is not a fact that accused never came with a gas cylinder and never set fire on the house of Sarat.”

Those suggestions, contrary to her statement, made in the cross examination were denied by her. Kuntala Santa (P.W.2) stated that the appellant is her nephew and P.W.1 is her eldest Jaa, P.W.10 is also her nephew. The occurrence took place in the midnight of a day one year and two months ago, from the day of deposition. She was sleeping in the verandah along with P.W.1 and her granddaughter. In another room P.W.1’s son and daughter-in-law with their son were sleeping. While sleeping in the verandah, hearing hulla raised by P.W.1 she woke up and found the appellant with a gas cylinder. She requested him not to pick up quarrel with his brothers but the accused locked the room of P.W.10 from outside and alighted the match stick to ignite fire by the gas cylinder. The entire house was burnt. They raised hullah. Sarat (P.W.10) to come out of the room by breaking open the door but his wife and son could not and they were burnt alive to death. In her cross examination, she stood by all her statements, but added that there was a dispute between the appellant and his brother Sarat. She has corroborated P.W.1 that after hearing hullah, raised by P.W.1, the villager rushed in. She denied the suggestion, contrary to what she had stated in her examination-in-chief incriminating the appellant.

As stated, P.W.3 is not the eye witness. But he had informed the police what he had learnt immediately after the occurrence from P.Ws.1 and 2 that accused the appellant set fire by means of a gas cylinder. He had informed the police by filing a written report, scribed by one Banamali Prusty, who was not examined in the trial. Nothing could be extracted from him in the cross examination to the advantage of the defence, but P.W.3 has denied categorically that he had lodged the report falsely. P.W.4 Ashok Kumar Mohapatra is the seizure witness of the Gas Cylinder and few other articles seized by the seizure list (Ext.4). He has identified his signature on the seizure list. He was cross-examined but nothing surfaced in that process to dent the incidence of seizure. Jambeswar Mohapatra (P.W.5) is another seizure witness who only recognized his signature on the inquest report, he has denied that he did know about the inquest of the dead body. Ashok Kumar Parida (P.W.6) was witness to the inquest of Munu Santa and Susama Santa and he identified his signature over the inquest report. But, he had flatly denied that he did know anything about the occurrence. Consequently, he was cross-examined by the prosecution on being declared hostile. In the cross examination, he had stated that he did not see Sarat (P.W.10) in that house.

Baikunthanath Mahapatra (P.W.7) is another seizure witness. In his presence, one half burnt Gas Cylinder (Bharat), half burnt rubber pipe, one lock, one axe along with half burnt door were seized. He proved his signature on the seizure list (Ext.4). Lokanath Santa (P.W.8) was witness to the inquest and he identified his signature in the trial as Ext.2/4. He has stated in the trial that in the night of occurrence when his wife made him awake and told that the house of Bharat was burning. He woke up and found the house of Bharat was burning. He went to the back side of her house out of fear. Sarat (P.W.10) and Bharat (the appellant) are his nephews. Rama Chandra Maharana (P.W.9) is a chance witness. On 10.11.2012 at night, he had taken her wife to the hospital. When he went to the house of an auto rickshaw owner for taking her wife to the hospital, by the light of his torch, he saw Bharat (the appellant) coming with a gas cylinder and Bharat was moving towards the house where Sarat was staying. After a few minutes, he heard screaming sounds like ‘Badikhia Podidelu’ (burning something) then rushed towards the house of Sarat (P.W.10) and found the house is burning. He heard screaming of a woman and a child from inside the house and knocking sound. The house was completely gutted in fire. After few minutes, Sarat came out of that house with burn injuries all over his body. He was immediately taken to the hospital. Thereafter, he left that place. In the following morning, he could know that wife of Sarat was burnt to death. He stood by his statements made in the examination-in-chief during the cross examination. But in the cross examination, he had added that he heard the screaming of mother of Sarat (P.W.1). P.W.10, one of the pivotal witness who suffered the injuries in the said fire incident. P.W.10, Sarat Chandra Santa had testified in the trial and stated that the appellant used to threaten him by saying (to bansa budei debi). On 10.01.2011 at night, when he was sleeping with his wife and with his son inside the room, his mother and his daughter were sleeping outside the room. He heard hallah, her mother (P.W.1) saying ‘ghare Bharat nian lageidela’. Bharat had put fire in the house. He saw his room was burning. He tried to open the door which was bolted from outside. He could break open the door by means of an axe and went out of the room. His mother told him that Bharat (the appellant) left the place after burning the house. He found a gas cylinder on the verandah of the room which was burning, he received burn injuries all over the face, abdomen and entire body. His wife and son could not come out of the room and they were burnt. He was taken to the hospital at Bhubaneswar and he was treated there for 18 days.

In the cross-examination, he has given the description of their house and various locations and denied the suggestions contrary to what he has stated in the examination-in-chief. But he has admitted the suggestion that he did not see Bharat (the appellant) to bring the Gas Cylinder, Dambaru Samal (P.W.11) is another witness testified in the trial that he heard appellant at about 05.00 P.M, two years ago from the day of deposition saying abusively to P.W.10 that “to bansa budei debi”. He protested but the appellant repeated the same statement to his brother (P.W.10). In the cross-examination, he could not tell the day and time of the occurrence when specifically asked. But he has confirmed in the cross-examination that the appellant was not living with their joint family. He denied the suggestion that he did not hear the appellant saying ‘to bansa budei debi’. One Havildar P.W.12, attached to Itamati police station, namely Birendra Mohapatra carried out the inquest over the burn dead bodies of the wife and the son of P.W.10 in presence of the Executive Magistrate. After the inquest, the dead bodies were sent by him to the hospital for post mortem examination. In the aftermath of the post mortem examination, he took broken bangles, burnt sweater and cap by making samples and produced the same before the IIC along with the Command Certificate. IIC seized those articles in his presence by preparing the seizure list (Ext.5). He identified the said seizure list and the Command Certificate (Ext.6). There was no meaningful cross examination. Dr. Manoranjan Das (P.W.13) examined P.W.10. On examination, P.W.13 found that P.W.10 suffered 45 per cent burn injuries over his body. P.W.10 was admitted in the Burn Ward and treated there for 11 days. He was discharged on 23.01.2011. P.W.13 has given the locations where P.W.10 received the burn injuries. Those are: forehead, upper chest, both upper limbs and back. P.W.13 has clearly stated those injuries were due to fire and simple in nature. He admitted the injury report (Ext.7) in the evidence. There had been no meaningful cross-examination.

Dr. Narmada Sahoo (P.W.14) carried out the autopsy over the dead body of Muna Santa, son of P.W.10 and Susama Santa (wife of P.W.10). According to P.W.14, Muna Santa received 100 per cent burn injuries, internal organ came out through abdomen. According to P.W.14, the cause of death is asphyxia. For the same reason, death caused to Susama Santa. Her body was deformed. Hands and knees flexed. Cranium and spine were intact. Both the chambers of the heart were filled with black color blood. Lungs contained black particles. In short, 100 per cent burn destroyed all the vital organs. The post-mortem report of Susama Santa, Ext.9, has been admitted in the evidence by P.W.14. In the cross examination, P.W.14 having denied all suggestions contrary to his observation stated that there will be no pugilistic signs if a person after death is set to fire. She has further observed that after conducting the post mortem on the dead body, she came to the opinion that both of them were burnt while they were alive. On recall, she had observed that the injuries found on two dead bodies are possible, if cooking gas was passed into a closed room through a slit and if a match stick is flashed while a person was sleeping in that room. There was no meaningful cross examination.

Dr. Raghunath Naik (P.W.15) examined P.W.10 on 02.04.2011 and he had given the details of injury as follows:

(i) Whole of the back.

(ii) Back of right arm and forearm.

(iii) Whole of left arm and forearm.

(iv) Whole of forehead.

(v) Both the lips.

He identified the injury report (Ext.10) for admission in the evidence. Nothing material could be extracted out in the cross examination from P.W.15.

IIC (P.W.16) has given the details how he had conducted the investigation after receipt of the written report from P.W.3. He had closed the gutted house for purpose of investigation. He has admitted the fact of seizing the materials like Gas Cylinder, burnt rubber pipe, one axe, one burnt lock and one piece of burnt door. According to him the inquest was conducted on the following day in presence of one Executive Magistrate and thereafter those dead bodies were sent for post-mortem examination. In the course of investigation, he had examined the witnesses as stated before and seized the material objects to bring out the truth. He had also examined one Rabindra Kumar Sahoo, owner of the Gas chulla repairing shop of Itamati Bazar and asserted from him that he had sold one Gas Cylinder two months ago to the appellant without any license. As a result, the proceeding under the Essential Commodities Act was also initiated against the appellant.

P.W.16 had collected the medical injury reports, post-mortem examination report, Forensic Chemical Examination reports from the State Forensic Science Laboratory Rasulgarh, Bhubaneswar. The said Chemical Examination report was signed by the Director of SFSL, under Section 293 of the Cr.P.C. Those are admitted in the evidence and there had been no prayer for cross-examination of the expert. Thereafter, on completion of the investigation, he filed the charge-sheet against the appellant. An elaborate cross-examination was carried out, but P.W.16 did not admit any of the suggestion, questioning the legality and fairness of the investigation. In the cross-examination, he has admitted that he had no knowledge that every cylinder carries one identification number. The other suggestions, contrary to the examination-in-chief stood denied by P.W.16. But on his examination, P.W.16 identified those material objects as seized by P.W.16, during investigation. He has also admitted the chemical examination report. But, there is no specific opinion whether the part of the door was burnt by gas or not.

According to Mr. A. Sahoo, learned counsel, contradictions in the statement of P.W.1 has been casually brushed aside by the Sessions Judge. Mr.A. Sahoo, learned counsel has underlined that at the first instance P.W.1 has stated that she could not identify the appellant because of the darkness. But later on, she had suddenly stated that she saw the appellant with the gas cylinder and saw him setting the fire in the room where P.W.10 and his family were sleeping. This is a sheer contradiction surfaced for deliberate improvement. According to Mr. A. Sahoo, learned counsel, these vital contradictions have demolished the prosecution case but that aspect was not given due consideration. Reliance has been placed on the Apex Court decision in Dr. Sunil Kumar Sambhudayal Gupta (supra) has observed, having referred to Bihari Nath Goswami vs Shiv Kumar Singh: (2004) 9SCC 186, that exaggeration do not render the evidence fragile. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. While deciding such a case, this Court has to apply the aforesaid test. Mere marginal variation in the statement cannot be dubbed as improvements as the same may be elaboration of the statement made by the witness earlier. The omission which amounts to contradiction in material particulars and affects the core of the prosecution case, rendered the testimony of the witness not creditworthy. What is really surprising is that no attempt was made to bring out such contradiction from omission by observing the procedure as required under Section 145 of the Evidence Act. At no point of time, the previous statement (as recorded under Section 161 of the Cr.P.C) was referred to P.W.1. Therefore, this Court is unable to accept the defence plea and there was omission amounting contradiction or even exaggeration to such an extent which strikes at the credibility of the statement of the witness.

This Court cannot have any different opinion as regards the law as expounded. In Ganga Bhabani (supra), the Apex Court has observed that where the eye-witness account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eye-witnesses account requires a independence assessment and evaluation for its credibility. Thus, in cases where there is contradiction between the medical evidence and the ocular evidence it has been crystalliszed tp the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis the medical evidence and when the medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process initial evaluation of evidence. However, where the medical evidence is so clinching that it completely rules out even the very basis of the ocular evidence being true, the ocular evidence may be disbelieved.

In the present case, no such alternative possibility emerges categorical testimony is supported by the medical evidence and the chemical examinations report. Therefore, this principle of law cannot be applied in the present context to disbelieve the ocular evidence. In this regard, it may also be noted that the evidence of the related witnesses is required to be carefully scrutinised with an additional amount of caution before any conclusion is drawn out of their testimony, but their evidence cannot be disbelieved merely on the ground that the witnesses are related to each other to the deceased. If the evidence reveals the ring of truth, it be accepted as cogent, credible and trustworthy. It can, and certainly should be relied upon. Moreover, the natural witnesses may not be labeled as the interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation or to have outcome of their preference.

In Arshad Hussain (supra), the Apex Court had occasion to observe that if the infirmities surfaced in the evidence that make the occurrence itself doubtful, the accused cannot be convicted under the charge of serious offence based on such evidence. The prosecution has to establish circumstances in such a manner that would exclude or demolish any hypothesis of innocence fully.

The decision of this Court in Jayaram Sahoo (supra) has been relied as regards the motive in a case based on circumstantial evidence. It has been held in Jayaram Sahoo (supra) that in a case based on circumstantial evidence motive is a vital component and an important element in the chain of circumstances. It forms an important link to complete the chain of circumstances and fatal for the prosecution (Shivaji Chinatappa v. State of Maharashtra, AIR 2021 SC 1249). In this case, the prosecution has successfully proved the motive by the evidence of P.W.1, P.W.10 and P.W.11. There had been long standing dispute between the appellant and P.W.10 in respect of use of the cultivable land, since P.W.10 had been cultivated in the land alone. The appellant was nurturing grudge and on few occasions, he had given vent to that grudge. On the very day of occurrence, he had given threat to P.W.10.

On the cumulative assessment of the evidence, the evidence of P.Ws.1 and 2 cannot be discarded at all, in as much as in the aftermath of the occurrence, persons who appeared from the close vicinity has confirmed her action of raising halla even P.W.10 has confirmed that. So far as the fire incident is concerned, from the place of occurrence the Cylinder that was recovered was filled up with Liquefied Petroleum (the cooking gas) and that was seen to be brought in the place of occurrence by P.W.1. She has very categorically stated that for perpetrating that crime, the appellant entered in the verandha, and opened the gas cylinder and alighted the match stick. Her testimony in this regard has established the identity of the offender.

The defence tried to create a cloud by taking out one statement without context that P.W.1 has stated that she could not identify the appellant in the darkness, but the word “first darkness” has been omitted at the time of analysis. The statement that P.W.1 has made is that first she could not identify the appellant for darkness later on she had described unwaveringly how the appellant had set the house on fire by using the gas cylinder. Moreover, the gas cylinder and the burnt pipe by which the gas was released were seized and the seizure has been proved by the prosecution to the hilt.

That apart, the one witness (the owner of LPG store) has also stated that two months ago the appellant bought the gas cylinder, without any license. P.W.9, a chance witness, had seen in the eve of the occurrence, the appellant was carrying the gas cylinder towards the house of P.W.10. Thus, preparation, motive and execution of the crime had been well established by the prosecution without any amount of doubt.

In the occurrence, two human lives were burnt alive to death. It is gruesome, brutal and extremely cruel. As such, according to this Court, even while awarding the sentence, all the elements as required to be considered have been considered. The sentence has been moderated in the perspective fact of outstanding enmity. As such, no intervention is called for in the Judgment of conviction and in the order of sentence. As consequence, those are affirmed.

In the result, the appeal being devoid of merit is dismissed.

Send down LCRs forthwith.

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