JUDGMENT

Nanavati, J.-This is an appeal by special leave against the judgment and order passed by the High Court of Rajasthan in Criminal Appeal Nos. 239 of 1983 and 388 of 1985. Cr. A. No. 239 was filed by the four convicted accused whereas Cr.A. No. 388 was filed by the State against the acquittal of the 17 remaining accused and also against the acquittal of Accused Ramphool under Section 302 IPC.

2. Briefly stated, the prosecution case was that there was enmity between the family of the accused and the family of Babu Singh. Since 3 or 4 days before 29.7.81 the accused were threatening to kill members of the family of Babu Singh and his brother P.W. 1 Harbhajan. On 29.7.81 at about 6.00 O clock in the morning while Buddha, son of Harbhajan was returning from hillside with milk all the 21 accused assaulted him and tried to kill him. Hearing his cries Harbhajan and his brother Babu Singh ran to his rescue. While they reached near the house of one Amar Singh, the accused who were coming from the opposite side encircled Babu and started beating him. Accused Hari Singh gave 2-3 blows with his lathi (stick) on the head of Babu. Accused Heera Singh gave one or two lathi blows on his legs. Accused Brijendra also gave 3 or 4 lathi blows on the person of Babu. So Babu fell down and thereafter all the accused except Shrawan and Mohar Singh gave further lathi blows to him. At that time Accused Shrawan and Mohar Singh were saying that Babu Singh should be killed and they would bear the expenses for defending them. Meanwhile hearing shouts raised by Harbhajan, PW 2 Mathalli and PW 3 Bharosey came there. Believing that Babu was dead the accused left that place and went to the house of Babu. Accused Gopal, Benai Singh, Bhanwar and Dharam Singh entered the house and took away the gun and belt of cartridges belonging to Babu. While his wife protested Accused Gopal and Dharam Singh gave lathi blows and Accused Benai Singh and Bhanwar gave fist blows to her. Harbhajan took Babu to Bayana Hospital. By that time his son Buddha was also removed to that hospital. Harbhajan then went to the house of one Chandra Shekar, got a complaint regarding the incident prepared and went with it to the police station. He reached there at 6.45 A.M. and gave the complaint. On its basis the FIR (Exh. P-1) was prepared by PW 15 S.H.O. Kailash Bhagwati. The police officer then went to the hospital and recorded the complaint of Buddha (Exh. D-5) with respect to the assault on him. After completing the investigation the police chargesheeted all the 21 accused. They were thereafter tried in the Court of Additional Sessions Judge, Bharatpur for the offences punishable under Sections 147, 148, 307 and 302 IPC. Those accused who had entered the house of Babu and removed his gun and belt of cartridges were also charged for the offences punishable under Sections 454 and 380 IPC. Accused Shrawan and Mohar Singh who had not taken any part in beating Babu Singh were charged for the offences punishable under Sections 147, 307 read with Section 149 and Section 302 read with Section 149 IPC.

3. In order to prove the assault on Babu the prosecution relied mainly upon the evidence of PW 5 Buddha, his dying declaration and PW 9 Jai Singh. Jai Singh did not support the prosecution and was declared hostile. The learned Additional Sessions Judge found the evidence of PW 5 Buddha suffering from some major contradictions and infirmities and, therefore, believed his evidence only with respect to Accused Hari Singh, Heera Singh and Ramphool. As regards the fatal assault on Babu the prosecution relied upon the evidence of PW 1 Harbhajan, PW 2 Mathalli, PW 3 Bharosey and PW 4 Bishni. In view of the admission made by Bishni in her evidence that she had not seen the killing of her husband the learned Additional Judge held that she was not an eye witness. The learned Judge found the evidence of remaining three eye-witnesses believable as regards Accused Hari Singh, Heera Singh and Brijendra