IMPORTANT POINT
The prosecution has proved case against appellants out of 44 accused tried for offences under Sections 302/149, 323/149 beyond reasonable doubt and High Court has committed no error in upholding their convictions and sentences.

Headnote:(i) Criminal Trial-Forty four persons armed with weapons committing two murders and causing injuries to three-Number of injuries not tallying with number of accused-Contention that deceased might have received injuries in other incident or at different place-Whether tenable? (Yes).
       Held : We find difficulty in accepting the contention as in the examination-in-chief, doctor has specifically given the time of death as 1.30 p.m. The fact that in the cross-examination, he has stated that there may be twelve hours variation in the time of occurrence on either side would not necessarily mean that the occurrence had taken place in the dead of night. Moreover, the three injured persons had received injuries, namely, Gulab Rani (PW 2), Gajraj (PW 4) and one Gore Lal and number of injuries found by the doctor upon their persons are in all 23. These persons had received multiple injuries by sharp edged and lethal weapons and on vital parts of the body as well. Neither from the evidence of doctor, it appears that their injuries could be self inflicted nor there is any other circumstance to draw such an inference. The inflicting of injuries upon these three persons fits in with the time of occurrence disclosed in the First Information Report as well as the evidence and the same do not fit in with the hypothesis that occurrence might have taken place in the dead of night, especially when there is no circumstance whatsoever warranting such an inference. Thus, we do not find any substance in this contention. (Para 7)
       (ii) Criminal Trial under Sections 302/149, 323/149 IPC-44 accused involved-One was given acquitted on the basis of alibi (he was not present) and 20 others were given benefit of doubt-Whether this fact makes involvement of the appellants also highly doubtful? (No).
       Held : In our view, merely because benefit of doubt has been given in relation to some of the accused persons, the same ipso facto cannot in any manner affect the prosecution case against the appellants especially when evidence against them has been found to be credible. (Para 8)
       (iii) Criminal Trial of murder of 2 and injuries to 3 by a mob of 44-Injured persons giving parrot version supporting prosecution-Whether be disbelieved as they were related to deceased? (No)-Informant whether corroborates them? (Yes)-Independent evidence, available but not examined-Whether fatal? (No)-Whether there can be any doubt about manner of occurrence due to non-examination of Phulbai? (No)-Whether non-use of gun by two accused shows their non-involvement? (No)-Result-Appeals dismissed.
       Held : Further contention is that PWs 2 and 4 who claimed to be the injured eyewitnesses have supported the prosecution case by giving parrot like version in their evidence. In our view, these two witnesses have supported the prosecution case in all material particulars and they have made statements which are consistent with the First Information Report and nothing could be pointed out to discredit their evidence. Their testimony cannot be thrown away merely because they are close relatives of the victims more so when they are quite natural witnesses and their evidence fits in with the objective finding of the Investigating Officer as well as medical evidence. It has been pointed out by learned counsel for the appellants that the High Court having doubted that the informant PW5 was an eyewitness, ought not to have placed reliance upon his evidence to the effect that he had seen the accused persons fleeing away immediately after the occurrence and promptly lodged the First Information Report. In our view, even if he had only seen the accused persons fleeing away immediately after the occurrence, the same can be used to corroborate the testimonies of PWs. 2 and 4 who were the injured eyewitnesses. Learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of prosecution party were being assaulted and they intervened in the matter, none of them has been examined in the case on hand. In our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of PWs 2 and 4, the two injured eyewitnesses who had received multiple injuries, have been found to be trustworthy and their evidence is corroborated by the informant-PW.5 and supported by medical evidence as well as objective finding of the Investigating Officer. It has been also contended that Phulbai who gave information to PWs. 2 and 4 that accused persons armed with deadly weapons had assembled in the baithaka of one Modley and planning there to kill the two deceased persons, was not examined. It appears that the occurrence had taken place under a neem tree where accused persons came from the baithaka of Modley. The fact that the accused persons had collected in the baithaka of one Modley and were planning there to murder the two deceased persons having not been proved by non-examination of Phulbai, the same cannot in any way affect the manner of occurrence under the neem tree where the accused persons are said to have arrived and assaulted the two deceased persons and the three injured persons inflicting as many as 48 injuries in all. Learned counsel lastly contended that according to the prosecution case, two accused persons were armed with guns, but they did not use the same which appears to be highly improbable. In our view, the complicity of two accused persons who were armed with guns having been doubted by the High Court itself, they have already been acquitted which cannot in any manner affect the prosecution case so far as the appellants are concerned against whom the witnesses have consistently deposed and their evidence has been found to be credible. In view of the foregoing discussion, in our considered opinion, the prosecution has proved its case against the appellants beyond reasonable doubt and we do not find that the High Court has committed any error in upholding their convictions and sentences so as to justify any interference by this Court. In the result, the appeals fail and the same are dismissed. (Paras 9 to 15)

JUDGMENT

B.N. Agrawal, J.-Appellants in these two appeals, who are in all eleven in number, along with thirty three other accused persons were convicted by the trial court under Sections 302/149 and 323/149 of the Penal Code and each one of them was sentenced to undergo imprisonment for life and rigorous imprisonment for a period of one year respectively. Appellants of Criminal Appeal No. 808 of 2000 besides other twenty five accused persons were further convicted under Section 147 of the Penal Code and each one of them was sentenced to undergo rigorous imprisonment for a period of one year. Appellants of Criminal Appeal No. 809 of 2000 were also convicted under Section 148 of the Penal Code along with seven other accused persons and each one of them was sentenced to undergo rigorous imprisonment for a period of three years. The sentences, however, were ordered to run concurrently. On appeal being preferred by all the forty four accused persons, including the appellants, convictions and sentences of the appellants have been confirmed by the High Court whereas appeal of five accused persons had abated as they died during its pendency. Appeal preferred by the other five accused persons was allowed in part and while confirming their convictions, the sentences awarded against them have been set aside on the ground that they were juvenile. One Darbari has been acquitted by the High Court as his plea of alibi found favour with it. The other accused persons have been acquitted as the prosecution failed to prove their participation in the crime beyond reasonable doubt.

2. Prosecution case, in short, was that on 4th May, 1976 the two deceased Umrao and Juggey, who were residents of village Bamhauri, after taking their breakfast had gone to Madawara market. At about 12.00 or 12.30 p.m. they came back from there by a bus and were sitting in their Khallihan underneath a neem tree. Gajraj (PW.4), Gulab Rani (PW.2) (wife of Umrao) and Kirat (PW.5) were also present in the vicinity. PW.5 thereafter had taken his cattle to the village pond. PW.2 and her son-PW.4 went to drink water in the hutment of one Gore Lal. When she was drinking water, Umrao s daughter-Phulbai came there and informed her mother-PW.2 that a large number of persons had assembled in the baithaka (an assembly hall) of one Modley, were holding guns, lathis, axes and ballams etc. and saying that "Umrao and Juggey had come, let us kill them". Hearing this, PW.4 and PW.2 came out of the hut and saw the accused persons coming towards them from three sides. Ratan, resident of village Ratanpur, was standing on the road leading to the school, Ratan Modley stood on the road leading to Chittar, both holding guns, and blocked the passage. Ratan Modley was exhorting other accused. In all, forty four accused persons came there, out of whom, appellants Nathu, Meharban, Bhagirath, Girdhari and accused Gopi, Bahadur and Babu, in all seven, were armed with axes, appellant Dayaram and accused Darbari and Vijay with ballams, accused Ratan, resident of village Ratanpur, and Ratan Modley with guns and other thirty two accused including the other appellants with lathis. All of them started assaulting Umrao and Juggey with axes, lathis and ballams underneath the neem tree. When PW.2, PW.4 and Gore Lal tried to save them, they were also assaulted by some of the accused persons. PW.4 was assaulted by accused Sukh Singh, Jawahar, Ratan, resident of Madawara, and appellants Uttam and Girdhari with lathis. PW.2 was assaulted by appellant Uttam and accused Bahadur with lathi and axe respectively. In the midst of assault, Umrao somehow managed to escape towards the village. He was chased and thrown on the ground by appellants Meharban, Bhagirath, Dhan Prasad and Sura besides accused Gopi and Ganiya and assaulted by them with axes and lathis. In the course of the assault, witnesses Mulchandra, Nathu, Panchey, Lakshman, Rammu and Khuman came to the place of occurrence and intervened. Lakshaman asked the a

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2002 Supreme(SC) 840

IMPORTANT POINTThe prosecution has proved case against appellants out of 44 accused tried for offences under Sections 302/149, 323/149 beyond reasonable doubt and High Court has committed no error in upholding their convictions and sentences.

IMPORTANT POINT
The prosecution has proved case against appellants out of 44 accused tried for offences under Sections 302/149, 323/149 beyond reasonable doubt and High Court has committed no error in upholding their convictions and sentences.