Amar Saran & Vijay Lakshmi,JJ. By an order passed today after receipt of the report of C.J.M Etawah and Aurai that 9 of the appellants Jharu, Sukul, Sardar, Bhajan Lal, Chandrawati, Bitani, Sahab Lal, Sukhwasi, Mukut Singh have died, we have abated the appeal against the said appellants. At present, we are examining the case of the 10 surviving appellants. 2. This criminal appeal arises out of the judgement and order of the IVth Additional Sessions Judge, Etawah dated 10.12.1982 passed in S.T. No. 270 of 1980, convicting and sentencing the 19 appellants. The appellant Parghan, the deceased appellants Jharu, Sukul and Man Singh have been convicted under section 302 I.P.C simplicitor to imprisonment for life, under section 436 I.P.C to imprisonment for five years, under section 429 I.PC to imprisonment for one year RI. The deceased appellant Jharu was also convicted for one year RI under section 148 I.P.C. The other 8 surviving appellants, Man Singh, Collector, Jhanak, Bhajan Lal, Ashok, Smt. Dhanwati, Ram Kali and Bhagwan Das and the other 7 deceased appellants (whose appeal has been abated as above) were convicted and sentenced to imprisonment for life under section 302/149, five years R.I. under section 436/149 IPC, and two years R.I. under section 329/149 I.P.C. All the appellants and the deceased appellants other than Jharua were also convicted for six months RI under section 147 I.P.C. 3. The prosecution case was that there was a quarrel between the children of the informant Chhotey Lal and the children of the deceased appellant, Sukul when they were playing during the day on 2.5.1980. In the afternoon, Chhotey Lal's wife had gone to Sukul's house for lodging a protest. Then Bitani wife of Mukut and Dhanwati wife of Ashok, Tulsa wife of Parghan and Ram Kali daughter of Parghan started abusing Chhotey Lal's wife. When the informant Chhotey Lal, who was away at Dibiyapur market returned in the evening, his wife disclosed about the afternoon incident to him. There upon the informant Chotey Lal along with his brother Lal Singh and Bhagwan Deen went to lodge a protest at the houses of the appellants. When the informant Chhotey Lal, who was away at Dibiyapur market returned in the evening, his wife disclosed about the afternoon incident to him. There upon the informant Chotey Lal along with his brother Lal Singh and Bhagwan Deen went to lodge a protest at the houses of the appellants. Then the appellants most of whom belonged to Asha Ka Purwa of village Mohan Nagla where the incident had taken place and one of the appellants Mukut Singh, who belonged to Kanchan Ka Purwa and appellant Baiju Lal, who belonged to Ganu ka Purwa came out carrying Lathis and chased the informant and his brothers. When they went to hide in their houses, at about 6.00 P.M Parghan, Jharu and Mukut set fire to Bhagwan Deen's house, because of which two other huts started burning. The informant's son, the deceased Bhura aged 7 years, Km. Meena daughter of Lal Singh aged 8 years, Ratan Lal son of Lal Singh aged 7 years and Somwati daughter of Surja aged 6 years ran and hid in the house of Lal Singh. In the meantime, a conflagration developed which even reached the house of Lal Singh. The four children and 3 goats were burnt to death in that house. On the alarm raised by the informant and witnesses, Constable Lakhan, resident of the village, Malik Lal PW-2, Chhiddan, Murli, Bhagwan Das and other persons arrived and began to extinguish the fire. The appellants armed with Lathis and spear were crying out that they would burn any body who tried to escape. When the informant and witnesses tried to escape, then Chandrawati wife of Sheonath, Bitani wife of Sukul, Dhanwati wife of Ashok, Tulsa wife of Parghan and Ram Kali daughter of Parghan began throwing brick-bats. The witnesses made good their escape and the neighbours extinguished the fire. The informant then rushed to the police station Phaphund on his cycle and lodged a report at 8.05 P.M. PW-6 Head Constable Shrawan Kumar prepared the check report. Thereafter PW-5 Shiv Dayal SI, P.S. Phaphund arrived at the spot and collected the dead bodies of the four children. As it had become evening, he conducted the inquest next morning and sent the four dead bodies for post-mortem which was conducted by PW 6 Dr. S.K. Jain on 5.5.1980. All the four deceased children, Km. Mina, Ratan Lal, Km. Thereafter PW-5 Shiv Dayal SI, P.S. Phaphund arrived at the spot and collected the dead bodies of the four children. As it had become evening, he conducted the inquest next morning and sent the four dead bodies for post-mortem which was conducted by PW 6 Dr. S.K. Jain on 5.5.1980. All the four deceased children, Km. Mina, Ratan Lal, Km. Somwati and Bhura had 100% burns and the internal organs of their bodies were roasted. 4. Apart from two above mentioned witnesses PW-5 Shiv Dayal Singh the first I.O. and PW-6 Shrawan Kumar, Head Constable, PW-4 Mohd. Muin, who was the second I.O and has submitted charge sheet, PW-3 Kishori Lal has been examined to prove that a check report dated 8.11.1981 to the effect that on the said date, a report was lodged by Manik son of Putai against Sukhbasi, Jharu, Sukul and Parghan. 5. The only two witnesses of fact who have been produced in this case are PW-1 Chhotey Lal and PW-2 Malik. 6. PW-1 Chhotey Lal has affirmed his FIR as above and has narrated the facts mentioned therein. He has further mentioned that the accused had come running carrying brick bats, Lathis and spear. The appellant Jharu was carrying a spear, whereas the female accused were carrying brick-bats. The remaining accused person were armed with Lathis. On their chase, he ran inside the house and his two companion Bhagwan Deen and Surjan ran away towards the village for their safety. Then Sukul, Parghan and Jharu entered their house and cried out that their houses were being burnt. Then the informant Chotey Lal escaped from his hut. The women folk had escaped earlier. The accused persons Parghan, Sukul and Jharu then set fire to Bhagwan Deen's house and as a result of the fire apart from Bhagwan Deen's house, the houses of Nanku, Gyan Singh, Laraiti, Lal Singh also began to burn. The four deceased children got burnt in the house of Lal Singh. The house of this witness was also burnt. When the informant and other witnesses tried to save their children they were threatened that they would also be burnt and thrown into the fire. The women accused were hurling brick-bats, hence they could not save the children and three goats which were roasted in the house. He thereafter got the report (Ext. When the informant and other witnesses tried to save their children they were threatened that they would also be burnt and thrown into the fire. The women accused were hurling brick-bats, hence they could not save the children and three goats which were roasted in the house. He thereafter got the report (Ext. Ka-1) scribed by Ram Shankar at the police station and appended his thumb impression to it. The Investigating Officer thereafter arrived in the village, where he was able to apprehend four male accused and four female accused persons. He claims to have lodged an earlier report (Ext. Ka 32A) which was an application dated 17.3.80 given by the informant to the Superintendent of Police, Etawah that the accused had asked him to leave the village otherwise they would set fire to the informant's and his relations' houses. 7. PW-2 Malik has deposed that the incident in question had taken place two years and four months prior to his deposition in court. He was in his house on the date of incident, because a Baraat had come in the Mohalla, where he was helping out. On the date of incident, the informant Chhotey Lal had gone to Dibiyapur Bazar accompanied by his brother Lal Singh, Bhagwan Deen and Surjan. On that date, there was an altercation between Chhotey Lal's wife and Bitani, wife of Mukut and Dhanwati wife of Ashok, Tulsa wife of Parghan and Ram Kali daughter of Parghan over an earlier quarrel amongst the children during play. At that time, he was filling water from the well. Chhotey Lal and others returned at about 5.00 p.m., then their wives told that there was some exchange of hot words between them. He was hearing this exchange from his house. After sometime, Chhotey Lal's wife and Lal Singh's wife raised an alarm to save the lives of their husbands. Thereupon, this witness Malik, Lakhan, Chhiddan, Murli and Bharat Das came running to the door of the informant Chhotey Lal. The accused persons had surrounded Chhotey Lal's house. Jharu was carrying a spear and the female accused Chandrawati, Bitani, Ram Kali, Dhan Devi and Tulsa were carrying brick-bats. The other accused persons Parghan, Sukul, Collector, Ashok, Man Singh, Sahib Lal, Jhanak, Bhagwandas, Sardar, Bhajan Lal, Sukhwasi, Mukut and Baiju were armed with Lathis. Parghan and Sukul were saying that they would set his house on fire. Jharu was carrying a spear and the female accused Chandrawati, Bitani, Ram Kali, Dhan Devi and Tulsa were carrying brick-bats. The other accused persons Parghan, Sukul, Collector, Ashok, Man Singh, Sahib Lal, Jhanak, Bhagwandas, Sardar, Bhajan Lal, Sukhwasi, Mukut and Baiju were armed with Lathis. Parghan and Sukul were saying that they would set his house on fire. Then Chhotey Lal came out of the house and was running in the direction of this witness. Then the appellant Jharu, Parghan, and Sukul took out matches from his pocket and set fire to Bhagwan Deen's hut. Consequent to the fire to Bhagwan Deen's hut, the huts of Gyani, Nanku, Laraiti, Lal Singh and thereafter Chhotey Lal got burnt. The corpses of four children Meena, Ratan Lal, Somwati and Bhura were taken out from Lal Singh's hut and also two burnt goats were taken out from there. When this witness and others tried to help, then the accused persons threatened them that if any one tried to help then he may meet the same fate. The women were throwing brickbats because of which, it became impossible to save the deceased. Chhotey Lal went to the police station and lodged a report at 9 or 10 p.m. The police also had put off the fire with the aid of the villagers. The next morning the four dead bodies of the children were retrieved from Lal Singh's hut and inquests were conducted. There was some previous enmity between the accused and informant Chhotey Lal. The accused persons used to threaten him that he should leave the village otherwise he would be murdered and his house would be burnt. After the incident, this witness had submitted an application at the police station. 8. In their statements under Section 313 Cr.P.C. the appellants have denied the incident and have claimed false implication due to enmity. The appellant Parghan has stated that his two daughters had got married shortly before the incident. The Bidai ceremony of one of daughters had taken place 3 days earlier and the Bidai ceremony of his other daughter had taken place one day earlier. All the family members had gathered and food was being cooked outside the house. The appellant Parghan has stated that his two daughters had got married shortly before the incident. The Bidai ceremony of one of daughters had taken place 3 days earlier and the Bidai ceremony of his other daughter had taken place one day earlier. All the family members had gathered and food was being cooked outside the house. As there was strong wind a spark (chingari) had fallen on his hut, which had set off a fire, which reached the adjoining huts of his neighbours and soon there was a conflagration because of which a large number of huts, including those of the appellants Pardhan, Sukul and Collector were burnt. Chhotey Lal and others were given compensation after inquiry by the Tehsildar. Even the accused persons were given compensation. Taking advantage of this situation, Chhotey Lal at the instigation of one Ram Dutt, had falsely implicated these appellants and other relatives in this case. However, he did not examine any witness in defence. 9. We have heard Sri G.P. Dixit, learned Counsel for the appellants and Sri S.K. Anwar, learned counsel for the complainant and Sri Anand Tiwari learned AGA and have perused the trial court judgment and record. 10. Sri G.P. Dixit learned counsel for the appellants contended that an accidental fire had broken out and because of some previous enmity between the parties, 19 accused persons have been falsely implicated in this case. 11. Learned counsel for the complainant Sri S.K. Anwar, and Sri Anand Tiwari, learned A.G.A. on the other hand submitted that the incident in question had taken place at about 6.00 P.M. and the F.I.R. was promptly lodged at 8.05 P.M. at P.S. Phaphund which was 5 miles away. The witness P.W. 2 is absolutely independent. The time and place of incident has not been challenged. It is not denied that the huts were not burnt or that the deceased children were not found in the hut of Lal Singh. Brick bats were collected from the place of occurrence which are said to have been hurled by the female accused persons. There was an earlier report by Chotey Lal which is Ext. It is not denied that the huts were not burnt or that the deceased children were not found in the hut of Lal Singh. Brick bats were collected from the place of occurrence which are said to have been hurled by the female accused persons. There was an earlier report by Chotey Lal which is Ext. 32 A dated 17.3.1980 which was given by the informant to the Superintendent of Police, Etawah in which the story of threat to murder and to burn down their houses had been given by the appellants, if Chotey Lal and his relations did not leave the village, which threat was carried out in the present incident. 12. We have given our thoughtful consideration to the submissions made by learned counsel for the parties. The crucial question which comes up for consideration in this case, is whether the 4 deceased children were actually burnt alive, by the 19 accused persons, or whether their deaths were accidental, as a result of a sudden fire which had broken out when the appellants were cooking food outside their house, and some spark caught the wind, falling on some huts and the conflagration thereafter spread due to the strong summer wind, burning down 12 huts including 3 huts of the appellants Parghan, Sukul and Collector, and in one of the huts, that of Lal Singh, which got burnt, the 4 little children who had taken shelter were burnt to death along with 3 goats of Lal Singh. This fact has not been denied by any of the witnesses, including P.W1 Chhotey Lal and PW2 Manik that the huts of the three accused persons were burnt and after inquiry by the Tehsildar, Bidhuna, all the persons whose huts were burnt (including the three appellants) were given compensation. Although learned counsel for the complainant tried to argue that the accused in order to set up their own defence might have burnt their own house in their defence but we find this version of persons causing such grave harm to their property only to create a defence, very hard to swallow, especially in the circumstances of the present case. The huts were immediately noticed to have been burnt by the police and witnesses, and there was no occasion for the accused to have set fire to their own huts, for creating a false defence. The huts were immediately noticed to have been burnt by the police and witnesses, and there was no occasion for the accused to have set fire to their own huts, for creating a false defence. Whereas the informant and the other witness have specified that only the hut of Bhagwan Deen was supposed to have been set on fire to by the accused Jharu, Sukul, and Parghan, there was no specification as to who had burnt the other huts, including the appellants' three huts. Also as Bhagwan Deen was not the principal person whose children or female women folk were involved in the earlier quarrels on that day, as it was the prosecution version that Chhotey Lal's wife had gone to the appellant Sukul's house to raise a protest regarding the children's quarrel during play because of which abuses were said to have been hurled by the women accused, it is hard to understand why the appellants would have only set fire to Bhagwan Deen's hut, which eventually led to the fire spreading to other huts, and the deaths of the four children. It is noteworthy that Bhagwan Deen has not even come forward to give evidence in this case and to corroborate the version that the appellants had set fire to his hut. In fact none of the witnesses, including Lal Singh, whose hut was gutted, and whose two children Km. Meena, and Ratan Lal and whose 3 goats were burnt, nor Surjan whose child Km. Somwati died in the fire have come forward to give evidence in this case. It is significant that except two persons, Chotey Lal and Manik, no witness has come forward to support this case, which sets out to implicate 19 persons. None of the other pesons, constable Lakhan, Chiddan, Murli or Bhagwan Das who are said to have arrived after the incident on the alarm, and who also sought to extinguish the fire, and many of whose huts were also burnt in the conflagration, who had been named as witnesses by PW 1 informant Chotey Lal and PW 2 Manik, have come forward to give evidence in this case. This circumstance also suggests that these witnesses realized that the children had got trapped in the fire that accidentally broke out, and they were not interested in falsely nominating the large number of accused persons. This circumstance also suggests that these witnesses realized that the children had got trapped in the fire that accidentally broke out, and they were not interested in falsely nominating the large number of accused persons. No smell or kerosene oil or other circumstance for even confirming arson, and deliberate setting fire by any of the accused appears to be available. 13. There also appears to be no motive for commission of such a crime. There is little reason to think that the accused could have been interested in knowingly burning down Lal Singh's hut which contained 4 children. If there was some annoyance of the accused it could have been with the adults. Regarding this the two witnesses have stated that the male accused had surrounded them with lathis and spear, and the female accused were hurling brick-bats and the two witnesses and others were being warned not to interfere or escape, yet not a single adult person on the side of the prosecution or any other person present has received even a scratch on his person. Some witnesses and others were even trying to douse the fire. But no harm was even caused to them. Also it is highly improbable, that to the knowledge of the witnesses, the four children had gone into the hut of Lal Singh when the fire had spread, but even after the incident, none had gone into the hut to save them or to check on their condition. The cadavers of the 4 deceased children were traced out in the hut only the next morning. 14. This last circumstance also creates a doubt, whether the FIR was indeed lodged at 8.05 p.m. on 2.5.80, the date of incident as alleged, or that the FIR was prepared subsequently in consultation with the police and others and ante dated and ante timed. Because if this fact, that the children after the break out of the fire had gone to seek shelter in the hut of Lal Singh where they were burnt to death, was known when the FIR was lodged at 8.05 p.m., as this fact finds mention in the FIR itself, it was impossible that a search would have been made for the children as was specifically admitted by PW 1 Chotey Lal in his cross-examination, and their corpses would have been found in the hut of Lal Singh only the next morning. If the whereabouts of the children was known when the FIR was lodged, the first thing would have been to look for the children, as admittedly there was no fear as the police was present at the scene of occurrence at 10.00 p.m. in the night, and their dead bodies would have been immediately retrieved, and there was no question of waiting till the next morning to trace out the bodies of the children in the hut of Lal Singh. This circumstance alone is sufficient to demolish the existence of the FIR on 2.5.80 at 8.05 p.m. 15. The charred and roasted condition of the cadavers as seen in the autopsy reports of the children also suggests that no one had an idea, regarding the whereabouts of the children, because if the allegation that it was known that the children had got trapped in Lal Singh's house, the first reaction of the informant and other witnesses would have been to try and save the children, even at the risk of peril to their lives, and not to run away or even to go to the police station to lodge the report, especially when it is mentioned in the FIR itself that the villagers were engaged in trying to extinguish the fire, and had not all run away from the spot. 16. It is also improbable that the women accused would participate in such an incident by hurling brick-bats when the marriage ceremonies were being solemnized in their houses and a large number of their relations were present. The mere presences of brick-bats as shown in the site plan can give rise to no significant inference as such pieces of stones and tiles are strewn all over in rural habitations of the poor. There is no corroborative circumstance of any person having received a single injury due to the brick bats or lathis allegedly carried by the accused. 17. There is no corroborative circumstance of any person having received a single injury due to the brick bats or lathis allegedly carried by the accused. 17. In the aforesaid circumstances we are of the opinion that the version of the accused that some sparks flew out when food was being cooked outside their house on the occasion of the marriage in their family which caught the accused's or other nearby huts, and which then spread to as many as 12 huts due to the strong summer wind, resulting in the unfortunate burning to death of the four children in Lal Singh's hut, appears more probable than the prosecution version of three accused deliberately setting fire to Bhagwan Deen's hut, which then spread to other huts, and it cannot be ruled out that perhaps due to the handiwork of some mischievous village barrister like Ram Gopal who might be interested in occupying the land if the accused could be forced to flee the village, or for any ulterior end might have utilized this accident to prevail over the only two supporting witnesses, because of some subsisting petty dispute between the parties (as was apparent from the earlier FIR dated 17.3.80, Ext. Ka 32 A) to nominate 19 person for this alleged crime, which actually never took place. 18. On an overall consideration of the evidence and circumstances of this case, we are of the opinion that the testimony of the only two supporting witnesses does not inspire that degree of confidence and is not so implicitly reliable that on its basis the conviction of the 19 accused persons by the trial judge maybe sustained. We are of the view that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt. 19. The judgement impugned and the order of conviction as passed by the learned trial judge is set aside. The appellants in respect of whom these appeals survive are acquitted of the charges for which they had been found guilty. All of them are on bail. They shall stand discharged from the liabilities of their respective bail bonds. 20. The Appeal is allowed. A copy of this order and record be sent to the learned lower court. _____________