KUNWAR BAHADUR Vs. STATE OF UTTAR PRADESH
HIGH COURT OF HIMACHAL PRADESH
STATE OF UTTAR PRADESH
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FAZAL ALL,J. - - -
(1.) THIS appeal by special leave is directed against the judgment of the Allahabad High Court dated 5 -10 -1971 upholding the conviction of the appellants under section 302/149,1. P. C. but commuting the sentence of death to one of life imprisonment.
(2.) THE appellants were also convicted under section 307/149, and sentenced to five years rigorous imprisonment and under section 148 to two years rigorous imprisonment. We have heard Mr. Mulla, counsel for the appellant at great length and we have also heard Mr. Uniyal for the State. We have been taken through the judgment of the High Court and the evidence of the eye witnesses. After perusing the record we find that the prosecution case against the appellants has been fully proved as held by the High Court and there does not appear to be any error of law or misreading of any evidence so as to warrant our interference in special leave.
Mr. Mulla, however, specially stressed the cases of two of the appellant namely, Raja Ram and Nand Kishore. As regards Raja Ram, Mr. Mulla placed reliance on the finding of the High Court which appears to have found that even though Raja Ram was alleged to have been armed with a gun he may have caused an injury with a lathi as Vie has admitted in his statement under section 342. The evidence of P. W. proves clearly two facts against this appellant.
(3.) FIRSTLY that the appellant before the occurrence exhorted the other assailants of the deceased persons and the injured to open the assault by guns and other weapons. Secondly, that this appellant was also armed with a gun and there is consistent evidence of the eye -witnesses that all the three guns were fired though only one fire hit Nathu. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having been fired because it may be that even though the other guns were also fired the bullets did not hit anybody. In this view of the matter the High Court was not justified in holding that Raja Ram was armed with a lathi. Moreover, Raja Ram in his statement under section 345 has not denied his presence at the spot but has admitted his presence there and has even stated in his statement under section 342 before the commiting Magistrate that he had also assaulted the prosecution party with lathi.;
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