H. N. Seth, J. - (1.) THESE three connected appeals arise out of the judgment of the Sessions Judge, Allahabad dated 17-6-75 convicting five appellants in these three appeals of various offences punishable under Sections 147, 148, 325/ 149 and 302/149 of the Indian Penal Code. All the five appellants, namely, Brahma Das, Ballabh Das, Ghanshyam Das, Salik Ram and Rajdhar have been awarded death sentence under Section 302/149 of the Indian Penal Code and all of them have also been convicted under Section 325/149 of the Indian Penal Code and each of them had been awarded a sentence of rigorous imprisonment for one year. Appellants Salik Ram and Rajdhar have further been convicted under Section 147 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for one year each, while the remaining three appellants have further been convicted under Section 148 of the Indian Penal Code and awarded a sentence of 18 months rigorous imprisonment each. Criminal Appeal No. 1413 of 1975 has been filed by Ballabh Das and Salik Ram; Criminal Appeal No. 1436 of 1975 by Ghanshyam Das and Rajdhar, and the third Criminal Appeal No. 1449 of 1975 by Brahma Das. There is the usual reference for confirmation of death sentences.
(2.) THE occurrence is said to have taken place on 13-6-1974 at about 5 p.m. in village Seona within the circle of Police Station Sarai Mamrez in the district of Allahabad. THE person, who lost his life in the incident was Rajit Ram Pandey and his first cousin Jokhai Das sustained a grievous injury. THE parties are descendants of a common ancestor. Narain Das and Raghunath Das were real brothers. Brahma Das and Salik Ram are the grandsons of Narain Das while Ballabh Das and Ghanshyam Das are his great grandsons. Rajit Ram deceased was the grandson of Raghunath Das and Jokhai Das is also a grandson of Raghunath Das. According to the prosecution case, there was long standing enmity between the two branches of Narain Das and Raghunath Das. In the year 1941 one Damodar Das of the branch of Raghunath Das was murdered. Mathura Das s/o Narain Das and two grandsons of Narain Das, namely, Salik Ram and Jagdish Ram along with others were prosecuted for that murder, Rajit Ram deceased and his brother Aditya Narain appeared as witnesses for the prosecution in that case, which ended in the conviction of Jagdish Ram and others. In the year 1950 Ramanuj of the branch of Narain Das was murdered. Rajit Ram deceased, his brother Aditya Narain and some others were named as culprits, but this case ended in acquittal. THE state preferred an appeal against this acquittal, and it was dismissed on 17-3-1954. In a consolidation case pending against Rajdhar appellant, Aditya Narain gave evidence against him and Rajdhar appellant lost that case. Rajit Ram deceased belonged to Socialist Party. In the year 1969, the deceased and Shyam Surat Upadhya were elected to the Assembly in a bye-election. Later on the deceased joined Congress (R) party. In the year 1974 however the deceased was defeated in the election. But inspite of that the deceased continued to be an influential person. THE carving out of chaks of Jagannath and Arjun Das started on 12-6-74 and this job was being done by Ramesh Chand Verma, Kanungo and Chhotey Lal Lekhpal. THEy could not conclude the measurement on that date and therefore they continued their work on the next day, viz. 13-6-74. At about 63-Rep. 5 p.m. when measurement of the mend between the chaks of Jagannath and Arjun Das was going on, the deceased, Jokhai Das, Aditya Narain, Ramnehor, Yadunath Prasad and some others were present. All these five appellants came from the side of village Seona. Appellant Salik Ram and Rajdhar possessed lathis. As soon as these five appellants came to the spot, Salik Ram instigated his companions to kill Rajit Ram. THEreupon appellants Brahma Das, Ballabh Das and Ghanshyam Das took out loaded pistols from the folds of their dhoties and fired at Rajit Ram, but the pistol of Ghanshyam Das misfired. Aditya Narain etc. wanted to intervene and Aditya Narain succeeded in snatching the pistol of Ghanshyam Das. Salik Ram and Rajdhar then wielded their lathis, as a result of which Jokhai Das received an injury. Rajit Ram fell down and died on the spot and the assailants escaped towards the south. Aditya Narain dictated a report on the spot to his sister's son, Jagdish Prasad alias Ram Babu. THEreafter Aditya Narain took the dead body of Rajit Ram and Jokhai Das in a tractor to Police Station Sarai Mamrez where he lodged report Ext. Ka 1 at 7 p.m. H. C. Gautam Singh registered the case and prepared a check report. THE pistol marked Ext. 1, which was snatched from the hands of Ghanshyam Das, was deposited by Aditya Narain and the memo is marked Ext. Ka 2. Hari Prakash Sharma S.O. and S.I. Ram Nath Singh were present at the thana and the latter held an inquest on the direction of the Station Officer and prepared the necessary papers. The Head Constable noted the injury of Jokhai Das and sent him to Phulpur dispensary for medical examination with the fetter of request marked Ext. Ka 5. After recording the statements of Aditya Narain and Jokhai Das and some others, Hari Prakash Sharma left for the place of occurrence where he recorded statements of the other material witnesses and prepared site-plan. He also recovered blood, a Jareeb (Ext. 12) and the Basta of the Kanungo marked Ext. 11. At a distance of about 15 paces a blood-stained lathi (Ext. 15) was found behind the house of Ram Khelawan. All these articles were duly sealed and the necessary memos were prepared. The accused persons were not available" They surrendered afterwards and then Hari Prakash Sharma completed the investigation and submitted a charge-sheet on 28-6-74. No Doctor was available at Phul-pur and, therefore, Jokhai Das was brought to T. B. Sapru Hospital where he was examined by Dr. S.N. Purwar on 14-6-74 at 11-30 a.m. The doctor found that Jokhai Das had a traumatic swelling around the whole of his left wrist joint. X'ray was advised and in the opinion of the doctor the injury had been caused by some blunt object and was about a day old. Dr. B. N. Khanna of the same hospital took the X'ray photograph and submitted a report to the effect that he had found a fracture of the styloid process of the lower end of left radius and this injury of Jokhai Das was therefore reported to be grievous. Dr. O. P. Gupta of Moti Lal Nehru Hospital did the post-mortem examination of the body of Rajit Ram on 14-6-74 at 2-15 p.m. The doctor found one lacerated wound 8 cms. above the right ear, one lacerated wound 4 cms. behind injury no. 1 and one lacerated wound on the back of scalp transversely. There was one gun shot wound of entry on the front of outer surface of right thigh 15 cms. below iliac crest and one gun shot wound of exit above and in front of injury no. 4. There was another gun shot wound of entry 4 cms. above and in front of the right anterior-superior iliac spine. Both the gun shot wounds of entry had blackening and inverted margins. On internal examination the doctor found a fissured fracture 20 cms. in length of frontal and occipital bones near mid line with subdural haematona on the top of brain. The peritoneum was injured under injury no. 6 and contained clotted blood. There was a punctured wound on small bowel through and through its wall and one shot was recovered from the mesentery. In the opinion of the doctor, death was due to shock and coma and death could have taken place on 13-6-74 at 5 p.m.
(3.) ALL these five appellants denied the whole of the prosecution case. According to them, no measurement was being done on 13-6-74. Appellant Rajdhar said that he had heard about the murder having been committed at some other place some time in the night. ALL the appellants pleaded that they had been falsely implicated at the instance of Shyam Surat Upadhya. They also suggested that Jokhai Das had no injury and that a fictiti ous injury report had been obtained under the influence of Sri Salig Ram Jaiswal, who happened to be the Health Minister in the U. P. Government. Similarly appellant Brahm Das suggested that he had litigations with Aditya Narain, who was on friendly terms with Shyam Surat Upadhya. Appellant Ballabh Das said that P. W.s. Ramnehor and Yadunath belonged to the party of Aditya Narain. He further said that the Harijans and pasees were inimical to the deceased. Appellant Ghanshyam Das said that he had litigations with Aditya Narain and that Ramnehor had given evidence against him. The remaining two appellants also said that they had litigations with Aditya Narain and his relations. Thus in brief, all these appellants suggested that they had been implicated due to enmity and that all the prosecution witnesses had deposed against them due to enmity and party feeling. The learned Sessions Judge, after examining the evidence of the prosecution, came to the conclusion that all the four eye witnesses were interested ones and that there was no immediate motive for the appellants to commit the murder of Rajit Ram. He also held that the deceased had other enemies. Regarding the main occurrence, the learned Sessions Judge found the case of the prosecution to be substantially true and therefore arrived at a finding of conviction as noted above. The learned counsel for the appellants assailed this finding of conviction on two main grounds. Firstly, it was contended that because all the eye witnesses were intersted persons, their statements should not have been accepted by the trial court without any corroboration from some independent source ; and the second contention was that the story of the prosecution, suffered from some inherent improbabilities and was contrary to the medical evidence, and therefore, deserved to be rejected.;