(1.)The three appellants and another Abdul Hai Khan were tried by the Sessions Judge of Ghazipur for the murder of one Sikandar Khan, and they were acquitted. The state preferred an appeal against the acquittal of the High Court. The acquittal was set aside and they were convicted under Ss. 147 and 302/149, Penal Code, and sentenced to two years' rigorous imprisonment and transportation for life respectively, the sentences being made to run concurrently. The appellants have come up before this Court on special leave. Abdul Hai Khan, the other accused died in jail earlier.
(2.)The case for the prosecution shortly stated is this, Sikandar Khan, his son, Amanat Ullah Khan (P.W.1), and syce Munshwar Chamar (p. W. 7) left their village, Mania, at about 10-45 A. M. on 21-12-1947 to go to Dildarnagar to catch a train for Ghazipur, where they had to be present in connection with certain criminal proceedings arising out of the murder of one Munir Khan. They were joined on the way by Sitar Khan and Altaf Khan of the same village, who were going to Usia on their own business. Sikandar Khan was riding a horse. At about 12 noon when the party reached a place in the foot-path marked "I" in the site plan, five persons suddenly out of the thorny hedge called dubiki and four of them, two armed with spears and two with lathis, fell on Sikandar Khan and attached him. The four are Wilayat Khan, Usman Khan, Abdul Hai Khan and Quddus Khan. The fifth man , Jannat Khan, had a gun in his hand but he has not been tried as he is dated to have absconded. Sikandar Khan sustained injuries chiefly above the neck. There were five fissured fractured lines across the top of the head and he died on the spot. The son, Amant Ullah Khan, rode on horseback to Bhadaura Railway Station about 3/4 or one mile to the east, and despatched a telegram to the Police Sub-Inspector of Gahmar. He rode back to the scence of offence and from there proceeded to Dildanagar, 3 or 4 miles to the west, where he got the first information report (Exhibit P. 2) written by a school- master examined as P.W.2. The document gives the hour of report as 3 P.M/ (1 P.M. was corrected into 3). Investigation followed and the four accused named above were charged under Ss. 147, 149 and 302, Penal Code. In a carefully prepared judgment, the Sessions judge held that it was improbable that the alleged eye witnesses really say the occurrence, and taking the view that the case against the accused had not been established beyond reasonable doubt, he acquitted them, agreeing with two out of the three assessors. The State preferred an appeal against the acquittal. The learned Judges if the High Court discussed the evidence in great detail. In their view, the four eye witnesses were speaking to facts which they saw and there was no reason for disbelieving them. So, they set aside the acquittal, held the accused guilty of rioting with deadly weapons and the murder of Sikandar Khan, and imposed on them the sentences already referred to. Abdul Hai Khan, the third accused, has not for some reason preferred any appeal.
(3.)Even in appeals against acquittals, powers of the High Court are as wide as in appeals from conviction. But there are two points to be borne in mind in this connection. One is that in an appeal from an acquittal, the presumption of innocence of the accused continues right up to the end; the second is that great weight should be attached to the view taken by the Sessions Judge before whom the trial was held and who had the opportunity of seeing and hearing the witnesses. The High Court did not ignore this consideration in this case for they state even at the outset "We may say that in approaching this appeal, we have borne in mind that owing to their acquittal by the learned Sessions Judge, the presumption of innocence in favour of the accused has in no way been weakened and that we would not be justified in interfering with his order until we are definitely able to say that the balance of evidence is distinctly against the accused." Having administered to themselves this caution so to say, they proceeded to discuss and weigh the evidence in meticulous detail. In doing so, they brushed aside several circumstances which weighed with the Sessions Judge as improbabilities in the prosecution story, with the result that they became convinced of its truth, even though they themselves were of the opinion that the evidence of the prosecution witnesses had to be subjected to close scrutiny, having regard to the admitted existence of party feelings and enmity between the accused and the eye witnesses.