Judgment

BEG, J. :- These appeals by Special Leave are directed against the judgment of the High Court of Bombay allowing an appeal of the State of Maharashtra against the acquittal of the appellants by the Sessions Judge of Bhandara. The appellants, Yeshwant Suraj Lal and Brahmanand Tiwari were convicted under Section 302 read with Section 34 Indian Penal Code for the murder of Sukal and sentenced to life imprisonment. The appellants Rupchand and Bhadu alias Ramkishore were convicted under Section 307 read with Section 34, Indian Penal Code and sentenced to seven years rigorous imprisonment for having made a murderous assault on Zingu who escaped and lived to depose about the attack upon him and the murdered man, Sukal his relation and companion. It appears from the prosecution case that Sukal and Zingu, while returning from a fishing expedition, were waylaid and attacked by five persons, one of whom was armed with an axe, with which he killed Sukal and another with a knife with which he stabbed Zingu thrice, at about 2.30 a.m. on 15-9-66 at a place called Marartola of Village Kati near an electric lamp post. The evidence also disclosed that apart from Zingu (P. W. 8), the injured man there were two more eye-witnesses Babaji (P.W. 17) and Jiwan (P.W. 18) who came from the direction opposite to that of the victims.

2. Zingu (P. W. 8) is said to have managed to extricate himself from his assailants with a jerk or push and to have fled crying for help. He also stated that while escaping, he saw Babaji (P.W. 17) coming from a side road with a lantern in his hand. Zingu rushed into the house of Jainarain situated at a distance of about 200 feet from the lamp post. Then Dr. Narsing Galole (P. W. 2), a Medical practitioner, who was sent for, came and attended to the injuries of Zingu after having seen Sukal lying unconscious near the lamp post. Zingu was said to be in plain but able to speak. Dr. Galole said that Zingu told him:

"I was caught by Rupchand and I was assaulted by Suraj, Sukal was near me. He was caught by Yeshwant and Bhadya Master and Tiwari attacked Sukal."

3. Doctor Galole then sent for a bus. But, before the Bus could arrive, Sukal had expired. Therefore, the Doctor took only Zingu in the bus to the Hospital at Gondia. The Doctor also lodged a First Information Report at 7.05 a. m. on 15-9-1966 at Police Station, Gondia, in which it was stated that Zingu had said that he had been beaten by Suraj Koshti while Rupchand Koshti had held him and that Sukal Pehlwan "had been held by Police Patil, Yeshwantrao Turkar and when Maharaj from Gondia had been asked to beat, he had showered blows". Thus although it was in the evidence of Dr. Galole that Zingu had named five persons yet, the First Information Report lodged by Dr. Galole omits the name of Bhadia Master alias Ramkishore. The omission from the First Information Report which could only be used to cross-examine Dr. Galole was not put to him so that he had no opportunity to explain it. Hence, nothing much could be made out of it.

4. One Chandanlal (P. W. 12) was said to have accompanied Dr. Galole to the scene of occurrence, and, thereafter, to the house of Jainarain and to have heard what Zingu and other eye-witnesses had said there. He deposed that Zingu had said "Yeshwant and Suraj caught hold of Sukal and Tiwari gave him blows. Bhadya Master caught hold of me and Rupchand gave me blows". This statement was in accord with the consistent statements of the three eye-witnesses at the trial. Chandanlal was Sarpanch of the Gram Panchayat of Kati since 1966. He admitted that Harlal, the elder brother of Yeshwant, was the Sarpanch until 1966, and that Chandanlal was his Deputy Sarpanch Chandanlal also said that Sukal deceased had also been a candidate at the election. His evidence showed that Jainarain was his brother. We do not see why the evidence of such a witness should be rejected simply because he had taken part, as a Sarpanch naturally must in village elections, or, beca