Dua, J. - (1.) The five appellants in this appeal by special leave were tried along with ten others in the court of the Sessions Judge, Mirzapur for various offences. Chandrika Prasad Singh, appellant No. 1 in this Court, was charged under Section 302, I. P. C. for committing the murder of one Ram Sajjan Singh. He was also charged, along with the remaining co-accused, under Sections 302/149, I. P. C. for the same murder. All the accused were further charged under Section 379, I. P. C. All the five appellants, along with some others out of the accused persons, were in addition charged under Section 148, I. P. C. Seven accused persons none of whom is before us, were separately charged under Section 147, I. P. C. Appellant Raj Nandan Singh, Bilat Singh, Ram Binod Singh were separately charged under Section 324, I. P. C. for voluntarily causing simple hurt to Shri Sambhu Prasad Singh. The trial court convicted Chandrika Prasad Singh under Section 302, I. P. C. and sentenced him to imprisonment for the life because the murder was not considered to be a premeditated one. While dealing with the charge under Section 302/149, I. P. C. the trial court felt that the five appellants, along with Ram Narian Singh, who were members of an unlawful assembly knew, that at least hurt was likely to be caused in the rioting in prosecution of the common object of the said assembly. They were, therefore, convicting under Sections 302/149, I. P. C. instead of under Sections 302/149 and sentenced to five year's rigorous imprisonment each. Nine accused out of the 15 were given benefit of doubt and acquitted.
(2.) On appeal to the High Court by the six convicted persons Ram Narain Singh was also given benefit of doubt by that Court. He was, therefore, acquitted. The appeal on behalf of the present five appellants was dismissed. In this Court the main argument addressed on behalf of the appellants was that Chandrika Pradad Singh was not present at the spot and with respect to the other appellants the material on the record did not show any overt act on their part with the result that they were also entitled to benefit of doubt and, therefore, to acquittal.
(3.) The High Court dealt with the argument on the plea of Chandrika Prasad Singh's alibi in the following manner: "On behalf of Chandrika Prasad Singh eight witnesses were examined. His main plea was that on the 3rd December, 1964 he was examined by D. W. 1 Dr. Jamuna Prasad Rai as he had some urinary trouble. He was referred to another Doctor and D. W. 5 Dr. S. S. Tripathy, examined his blood and stool on the 5th December, 1964. D. W. 4 Dr. V. N. Singh did the operation. This operation was in the nature of phimosis. Another witness D. W. 6 was examined to say that Chandrika Prasad Singh had taken a room on rent from 4th to 12th December, 1964 but he could not say definitely whether Chandrika Prasad Singh was seen by him in the night of the 5th December or in the morning of the 6th December. The learned Sessions Judge has discussed the evidence of these witnesses in detail in paragraph 44 of his judgment and came to the conclusion that even taking the evidence of these defence witnesses at its face value it could not be conclusively proved that Chandrika Prasad Singh could not be present at the time of the occurrence at the place of occurrence. The most important point in the plea of alibi was the time of the actual examination of blood and urine as well as the operation but this was not indicated anywhere in the evidence. This village is connected with Darbhanga by a pitched road and buses ply at short intervals. So, in my opinion, the learned Sessions Judge was right in disbelieving the plea of alibi put forth by Chandrika Prasad Singh." The conclusion of the High Court is not tainted with any infirmity justifying re-examination of the evidence by this court on special leave and interference with those conclusions. The onus to establish alibi was on Chandrika Prasad Singh and we do not find any cogent ground for disagreeing with the High Court that this onus has not been discharged on the evidence on the record.;