Important Point
In an appeal by some convicts against conviction of several accused, when conviction is set aside on overall consideration of prosecution case and not qua any particular accused benefit of acquittal order will be available to no-appealing accused/convicts.

Judgment

M.K. Mukherjee, J.-These three appeals, which have been heard togeth­er, stem from an FIR lodged by Riaz Masih (P.W. 8) on November 16, 1991 at Mani Majra Police Station for the murder of Chhinda in an incident that took place earlier on that day in Bapu Dham Colony. Pursuant to the charge sheet submitted by the police in that case three separate trials were held. In one of them Jai Sham, Durga Das and Pawan Kumar figured as accused, in another Jai Pal and Padam, who were juveniles, were tried and the third related to the trial of Jai Sham for the offence under Section 25 read with Section 27 of the Arms Act for being in unauthorised possession of knife, with which the murder was committed. The trials ended in acquittal of all the accused and aggrieved thereby the State preferred appeals before the High Court. In allowing the appeals by a common judgment the High Court convicted Jai Sham under Section 302 IPC and Sections 25/27 of the Arms Act and sentenced him to suffer imprisonment for life and rigor­ous imprisonment for three years respectively, with a direction that the sentences shall run concurrently. Accused Durga Das and Pawan Kumar were convicted under Section 302/34 IPC and each of them was sentenced to imprisonment for life. The High Court convicted the two juveniles also and directed their detention in a Special Home for a period of seven years, in accordance with the provisions of Section 38 of the Juvenile Justice Act. Aggrieved by the convictions and sen­tences recorded against him, Jai Sham has filed two of these appeals while the other appeal has been filed by the two juveniles challenging their conviction and detention in Special Home. The other two con­victs, namely Durga Dass and Pawan Kumar, however have not filed any appeal.

2. (a) Shorn of details, the prosecution case is that on November 9, 1991 at or about 5 P.M. when P.W. 8, his brother-in-law Dayal Masih (P.W. 9), brother Chhinda (deceased) and Joginder Singh (P.W. 11), all employees of Bhushan Factory in the local Industrial Area, were going to ease themselves they saw five young boys carrying two bags of aluminium powder with them. On suspicion that they were carrying stolen property, P.W. 8 and his companions accosted them. In retaliation they started abusing and one of them grappled with Chhinda and then left the place.

(b) A week later, on November 16, 1991 to be precise, at or about 4.30 p.m. when P.Ws. 8, 9 and the deceased were on their way to the factory, those five boys ambushed them and gave out that Chhinda would not be allowed to go alive. Immediately, four of them namely Durga Dass, Pawan Kumar, Padam Singh and Jai Pal caught hold of Chhin­da and Jai Sham started giving blows with a knife which he brought out from his pocket. Instinctively, when P.Ws. 8 and 9 shouted for help they took to their heels.

(c) Within a short-while, the police party came on the spot and with their help Chhinda was removed to the hospital, where he suc­cumbed to his injuries. P.W. 8 gave a statement about the incident which was recorded by S.I. Sukhdev Singh (P.W. 13) and the case was registered.

3. To prove its case the prosecution examined a number of witnesses of whom P.Ws. 8 and 9 figured as eye witnesses. On a detailed discussion of their evidence the trial Court found the same unacceptable; and the reasons canvassed by it for such conclusions are, that the evidence as to with whom and where the First Information Report was lodged was highly discrepant, that though P.Ws. 8 and 9 admitted that the fa­ther’s names of the accused and their addresses were not known to them from before those particulars find place in the FIR and no explanation was forthcoming from the prosecution about the same, and that the evidence of the two eye witnesses as also that of the two Investigat­ing Officers was contradictory on material particulars. In upsetting the findings of the trial Court the High Court held that the evidence of two eye witnesses was reliable and can