Judgment

GROVER, J.- The three appellants were convicted under Section 302, read with Section 34, Indian Penal Code, by the learned Temporary Civil and Sessions Judge, Kanpur and were sentenced to death for the murder of Ganeshi Lal on July 19, 1966. The Allahabad High Court has rejected their appeal and has also confirmed the sentence of death. They have appealed to this court by special leave.

On July 13, 1966, Rikhi Lal, Rameshwar and others were committed to the Court of Sessions to stand their trial under Sections 147 and 326 of the Indian Penal Code, for causing grievous hurt to Ganeshi Lal. By way of revenge, Rameshwar s brother Ram Prakash, Rikhi Lal s collateral Ram Nath and their alleged associate Rajan are stated to have attacked Ganeshi Lal at about 8 a. m. on July 19, 1966. The occurrence is alleged to have taken place in front of the house of Rikhi Lal on the road leading from Ganeshi Lal s manure heap to his house. He was returning home after throwing some cowdung on his manure heap. Ram Prakash and Ram Nath are stated to have used knives and Rajjan a dagger (karoli). Ganesh Lal was given several blows and was stabbed even after he had fallen down. The first information report was lodged by Nathu Ram at 9. 30 a. m. at Derapur police station which is at a distance of 6 miles from village Jarauli where the occurrence took place. Ganeshi Lai sustained as many as 11 incised wounds which were on the neck, chest, the right lumber region and the left wrist and hand. One of these injuries pierced right through the neck from left to right while other injuries cut the larynx, the trachea, the aorta, the pericardium, the diaphram and the liver. Four eye witnesses namely, Nathu Ram P. W. 1 grand nephew of the deceased, Vishambhar P. W. 2, Devi Lal P. W. 3 and Ram Bharosey P. W. 9 deposed to having seen the occurrence. The High Court rejected the argument based on grounds of improbabilities in respect of the evidence given by the aforesaid eye witnesses. As regards the partisan and inimical nature of their evidence, the view of the High Court was that at least two, if not three of the eye witnesses were independent and impartial and there was no reason why their testimony should not be believed. Tho High Court also said that the third appellant Rajjan appeared to have joined the other two because he was their friend and associate and he has not been able to suggest any particular reason why he should have been falsely implicated in the case. Owing to the brutal attack made on an unarmed person and the continued act of stabbing even after he had fallen down, it was held that the imposition of sentence of death was justified.

Mr. Frank Anthony, who has argued the appeal, has raised the following seven points before us :

(1) The judgment of the High Court particularly when a reference has been made for confirmation of the sentence of death is no judgment in the eye of law. No attempt has been made to assess all the evidence or the facts.

(2) The High Court did not discuss the medical evidence which cast a doubt on the prosecution case.

(3) Natural witnesses who were either present or were likely to have witnessed the occurrence were not examined.

(4) The learned Sessions Judge has used the fact of the accused having gone into hiding for the purpose of corroboration of other evidence. The High Court, however, did not consider the infirmities in this behalf.

(5) Rajjan appellant was assumed to be an associate and friend of the other two appellants without there being any basis for this assumption.

(6) The numerous illegalities and irregularities were committed with regard to the first information report. It was never recorded at 9. 30 a. m. and was recorded much later at the spot. Thus the prosecution case suffered from this taint.

(7) The evidence of the eye witnesses could not have been accepted when the plan which had been prepared was kept in view.

It will be best to deal with the first point last.

On the second point, it is urged, that