Important Point
The High Court has failed to correctly appreciate the evidence of the eye witnesses and the grounds given by it for discarding their evidence are flimsy. Acquittal is thus liable to be reversed, however, subject to modification of death sentence as it is not a fit case in which death sentence can be imposed.

Headnote:Indian Penal Code, 1860-Sections 147, 148 and 302/149, 302/ 34-Offences under conviction by Trial Court-Acquittal in appeal by High Court-Appeals against acquittal-High Court acquitting on grounds that evidence of eye witnesses was contradictory to Medical evidence-That no independent witnesses were examined from locality-That they were partisan witnesses-That evidence of P.W. 7 was improbable-Supreme Court found that reasons given by High Court were not correct-Inconsistency with medical evidence was due to confusion-Independent witnesses were not willing to tell-Witnesses had inimical relations but their evidence was required to be appreciated on its own merits-Evidence of P.W. 7 was probable-The conduct of P.W. 7 was natural -Alleged material improvements by P.W. 7 not proper-Discarding of evidence of eye witnesses Navin Rai found improper-Result-Acquittal reversed-Conviction restored but with modification of punishment. (Paras 7 to 16)
Held : On close scrutiny of the evidence and after hearing the submissions of the learned counsel, we find that the High Court did not appreciate the evidence correctly and failed to take into consideration the reasons given by the trial Court for accepting their evidence. The discrepancies in the evidence noticed by the High Court were considered by the trial Court and good reasons were given for accepting the evidence of P.Ws. 1, 7 and 8 notwithstanding those discrepancies. The High Court gave undue importance to those discrepancies and without valid reasons doubted the presence of P.Ws. 1, 7, and 8 discarded their evidence. The erroneous appreciation of the evidence by the High Court and consequent acquittal has led to the miscarriage of justice. We, therefore, allow these appeals, set aside the judgment and order passed by the High Court and restore the judgment and order of conviction passed by the trial Court. We also restore the order of sentence passed by the trial Court, subject to this modification that for the murder of Boudhu. Accused Ram Padarath for his consequent conviction under Section 302, shall suffer imprisonment for life instead of the sentence of death as we are of the opinion that this is not a fit case in which death sentence should have been imposed upon Accused Ram Padarath. The respondents are directed to surrender to custody to serve out remaining part of their sentence. (Para 17)

Judgment

Nanavati, J.-Both these appeals are filed by the State of Bihar against the common judgment of Patna High Court in Death Reference No. 7 of 1987 and Criminal Appeal No. 407 of 1987. The High Court rejected the Reference, allowed the appeal filed by the convicted accused and acquitted them.

2. The prosecution case was that on 29.1.86, Subhash Kunwar (informant) and his brother Rambilas @ Boudhu (deceased) and Mangal (deceased) left village Basudevpur in the morning for going to Begusarai. At about 9’O clock, when they were passing by the ‘bandh’ (embankment) near village Koria -Haibatpur, accused Ram Padarath, Ram Sugarath, Ramsubodh, Bipin, Dilip (absconding) who were armed with pistols and ‘katta’ attacked them, because of the previous enmity with the informant and his brother. Boudhu and Mangal who were walking ahead of Subhash became their targets. The shot fired by Ram Padarath (Respondent No. 1) injured Boudhu. After walking a few steps he fell down in a nearby field where he was given a blow by Ram Sugarath with a ‘katta’ on his head. He died immediately. Mangal who had started running away from that place shouting ‘Bachao Bachao’ was hit by a shot fired by Dilip. After covering some distance he fell down and at that time Ram Subodh (Respondent No. 2) Vipin and Ram Sugarath attacked him by giving ‘katta’ blows and killed him. Subhash who was walking behind his two brothers was able to run away from that place before he could be attacked. He straight went to Begusarai, after catching a bus on the way, got a complaint written by his brother-in-law who was an advocate and presented it at Begusarai police station. On the basis of this complaint an offence was registered against all the five accused for the offences punishable under Sections 147, 148 and 302/149 IPC and against Ram Padarath and Dilip for the offence punishable under Section 27 of the Arms Act.

3. As accused Dilip and Ramsugarath were found absconding, the trial proceeded against the remaining three accused. The prosecution examined Subhash (P.W. 7) Navia Rai (P.W. 1). Vijay Kumar (P.W. 2), Biso Kumar (P.W. 8) and Lal Kunwar (P.W. 11) as eye-witnesses. The trial Court believed their presence at the time and place of the incident. It held that their evidence did not suffer from any infirmity and was truthful. On the basis of their evidence the three accused were held guilty for the murders of Boudhu and Mangal. All were convicted under Section 148 IPC. Accused Ram Padarath was convicted under Section 302 for the murder of Boudhu and under Section 302 read with Section 34/149 IPC for the murder of Mangal. He was also convicted under Section 27 of the Arms Act. The remaining two were convicted under Sections 302 read with Section 34/149 IPC for the murders of Boudhu and Mangal. For causing death of Mangal all the three were sentenced to suffer imprisonment for life and for the murder of Boudhu accused Ram Padarath was sentenced to death and the other two were sentenced to suffer imprisonment for life.

3. Aggrieved by their conviction and the sentence imposed upon them, they filed an appeal before the High Court. As Ram Padarath, (Respondent No. 1) was sentenced to death, a reference was also made to the High Court for confirming his death sentence. The High Court held that all the eye witnesses stood contradicted by the medical evidence as regards the injury caused to Boudhu with a ‘katta’, inasmuch as they had deposed that accused Ram Sugarath had given a blow above the neck of Boudhu and a piece of flesh had bulged out from that would while the medical evidence showed that the injury caused by a sharp cutting weapon was on the vertex and not on the neck of Boudhu and no piece of flesh had bulged out from that wound, but some brain substance could be seen in it. The High Court also held that all the eye witnesses had failed to explain the incised wound found on the head of Boudhu and that created a serious doubt regarding their claim to have se

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