Judgment

Pattanaik, J.-These two appeals are directed against the Judgment and Order 30th January, 1997 of Allahabad High Court arising out Sessions Trial No. 213 of 1978 before the Sessions Judge, Mainpuri. Five appel­lants were tried for offences under Section 302/149 and Section 148 IPC on the allegation that all of them came armed and surrounded the deceased Jai Dayal Singh, while he was busy with cultivation work on 15.10.77 at 1.00 P.M. and opened fire at him. On account of such firing the deceased died. The further prosecution case is that on account of previous rivalry between the parties the deceased had been given police guards and those police guards arrived at the scene of occurrence and even chased the assailants and fired at them but all the assailants escaped. While the deceased was on the field, P.W. 1 Jai Prakash and P.W. 2 Satyapal Singh were also there but they ran for their lives to a certain distance and came to the place of occurrence only after the assailants left the place. Jai Prakash P.W. 1 gave a written report at the Police Station at 3.05 P.M. which was treated as FIR and the police then started investigation. After completion of investigation, charge-sheet was submitted and on being committed, the appellants stood their trial. The learned Sessions Judge relying upon the evidence of the two eye witnesses P.W. 1 and P.W. 2, came to the conclusion that the appellants formed an unlawful assembly and started indiscriminately firing at the deceased, as a result of which, the deceased died. Consequently, the Sessions Judge convicted the appellants for the offences as already stated. On appeal, the High Court also re-appreciated the evidence of the two eye witnesses and agreed with the conclusion of the learned Sessions Judge that the witnesses are trust-worthy and reliable and, therefore, the conviction of the appellants on the basis of those two witnesses was upheld. Since the conviction of the appellants is based upon the evidence of the aforesaid two eye witnesses, Mr. U.R. Lalit, the learned Senior Counsel, appearing for the appellants contended that the said two eye witnesses admittedly being enemical towards the accused persons, they cannot be held to be fully reliable witnesses and, therefore, corrobo­ration from the independent sources, though was available, the same not having been made available in Court, the prosecution was must be held to have been vitiated. According to Mr. Lalit, the police guards having reached the scene of occurrence while the accused persons were there and the prosecution evidence being that the police guards chased the accused persons and there was an exchange of fire, non-examination of those police guards must be construed to be an infirmity which im­peaches the reliability of the two enemical eye witnesses P.Ws. 1 and 2. Mr. Lalit also contended that the occurrence having taken place at 1.00 P.M. in broad day light in an open field and very near the Village Basti, normally one would expect several villagers as witness­es and non-availability of such witnesses must be viewed with suspicion. Mr. Lalit also further argued that the investigation in the case has not been made in a fair manner and the true story has not been placed before the Court, as a result of which the conclusion becomes irresistible that the genesis of the case and the manner in which the deceased met his death is not coming forth before the Court and, therefore the accused is entitled to benefit of doubt. According to Mr. Lalit, the fact that only three cartridges were found, two of which from 12 bore gun and one from riffle, the prosecution case that all the appellants started indiscriminately firing at the deceased cannot be accepted. Learned counsel also pointed out some intrinsic inconsistency between the evidence of the witnesses of P.Ws. 1 & 2 and contended that the evidence of such witnesses cannot form the basis of conviction in a charge of murder, particularly when they had positive animosit