Judgment

RAY, J.: This is an appeal by special leave from the judgment dated 17 March,1967 of the High Court at Allahabad acquitting all the accused, setting aside their convictions and sentences passed by the Sessions Judge, Agra and rejecting the reference made by the Sessions Judge, Agra for confirmation of death sentences passed upon the accused Sri Mohan, Hari Mohan and Ishaq alias Irshad.

2. There were 7 accused. They were Juggo alias Jagdish, Madan Mohan, Sri Mohan, Hari Mohan, Sri Chand, Sri Narayan and Ishaq. Madam Mohan, Sri Mohan and Hari Mohan were sons of Gaya Prasad. Sri Chand and Sri Narayan were sons of Ninua Ram Ishaq was the servant of Madan Mohan, Sri Mohan and Hari Mohan. They were charged for the murder of Lalu alias Raj Gopal. All the accused excepting Jaggo alias Jagdish were committed under section 148 of the Indian Penal Code and section 302 read with section 149 of the Indian Penal Code, Jago was committed under section 147 of the Indian Penal Code and S. 302 read with section 149 of the Indian Penal Code.

3. The prosecution case was that Lalu was pairokar of Kali Charan in a criminal case filed by him against Jaggo and another person named Iqbal. On 17 July, 1965 the day fixed for hearing of the case, Sri Chand and Madan Mohan abused Lalu and threatened him for doing pairvi in that criminal case. The same evening Lalu was talking to Ramesh, Tara Chand and Munna Lal at Bhogipura crossing at Agra City in front of Sarwan s shop. All the accused suddenly came and shouted at Lalu that they would teach him a lesson. Lalu ran inside the lane between the shops of Sita Ram and Lal Singh. The accused pursued him Lalu was overtaken. The accused assaulted Lalu even after he had fallen. A number of persons including Munna Lal, Girja Prasad, Bahadur Singh, Sarwan, Hari Babu, Tara Chand and Ramesh Chand are said to have witnessed the occurrence. After giving numerous blows the accused ran away. Munna Lal and Sarwan took Lalu in a rickshaw to a hospital. Dr. Balbir Sigh examined Lalu at 10 p.m. Munna Lal wrote a report and took it to Police Station at Loha Mandi and lodged it there shortly after 10 p.m. Lalu died after mid-night.

4. The post-mortem examination was held in the early hours of the marring. The death was due to shock and hemorrhage as a result of the injuries which were noted to be thirty eight in number.

5. The Sessions Court held that all the accused were guilt.

6. There were five witnesses Munna Lal Sita Ram, Bhikari Sarwan and Tara Chand. The prosecution called them as eye-witnesses. The Sessions Court accepted the evidence of each of them and gave the following reasons. The witness Munna Lal is Lalu s brother. The relationship of Munna Lal should be a reason for "a strict scrutiny" of the evidence of Munna Lal so that "the possibility of false implication of the accused on account of enmity should be avoided". On a scrutiny of the evidence of Munna Lal, the statement was worthy of credence. Munna Lal was a truthful witness because he did not deny the fact that he appeared as a witness against Sri Narain and Sri Chand. Sita Ram admitted his connection with Lalu and Kali Charan and that would show that Sita Ram was a trustworthy witness. The evidence of Sita Ram was corroborated by the statement of independent witness like Bhikari Lal. The absence of the name of Sita Ram from the first information report was not a ground for rejecting his evidence. Bhikari Lal was not mentioned in the first information report, Bhikari s house was near the place of the occurrence and Bhikari was expected to be at his house. Bhikari s presence at the time of the occurrence was found to be proved by reliable evidence. Bhikari was a surety for one Kali Charan. Bhikari admitted the fact and therefore he was a truthful witness. Sarwans evidence was challenged on the ground that once he had filed an application against Madan Mohan. His evidence was corroborated by other facts and circumstances. He was a witness of the locality. H