Judgment

BEG, J. :- The six appellants before us by special leave were tried by the Additional Sessions Judge of Gangapur and convicted under Section 147 Indian Penal Code and sentenced to one year s rigorous imprisonment as well as under Section 302 Indian Penal Code read with S. 149 Indian Penal Code and sentenced to life imprisonment. The convictions and sentences had been upheld by the High Court of Rajasthan.

2. The party of the accused had been claiming possession over a field called "Bhaiwala" over which there had been some litigation between two parties so that the Naib Tehsildar was appointed as Receiver by the orders of the S.D.O. Gangapur. The Revenue Courts then upheld the claim of Brijmohan the murdered man who was said to be in actual possession of it. The party of the accused had threatened him so that proceedings under Section 107 Criminal Procedure Code had to be instituted against the accused who had also been prosecuted for the theft of the crop by Brijmohan. The theft case was pending when an occurrence took place on the morning of 16-8-1965 over the ploughing of the field by a tractor taken by the party of Brijmohan. In this incident, two of Brijmohan s brothers and four of the accused persons were said to have been injured. A report had been lodged at the Police Station. It was in this state of tense feelings between the two sides that the accused are said to have proceeded in a group at about 5 p.m. on 16-8-1965 to give Brijmohan a beating when he was returning to his house after taking a bath in a pool of water. They are said to have caught him in the field of Champoli, P.W. 5, and given him a beating witnessed by Shri Das, P.W. 1, Basantilal, P.W. 2, Ramjilal Mina, P.W. 3 Champoli P.W. 5, Lohde, P.W. 6, and Banwarilal P.W. 7 Out of the six alleged eye witnesses only Champoli, P.W. 5, Lohde, P.W. 6, and Bhawarilal, P.W. 7, the son of the deceased Brijmohan, are residents of village Timava where the occurrence took place. The three other alleged eye witnesses belong to other villages. The High Court had examined the evidence of each one of the eye witnesses and found it unsafe to rely upon the evidence of any witness except Champoli whose evidence was accepted by it mainly on the ground that he was a resident of village Timava and he was a Mina by caste. The accused were also Minas by caste so that, in the opinion of the High Court, the evidence of a Mina against members of his own caste could be considered reliable. But, the High Court did not examine facts and circumstances which throw doubts on the complete reliability of Champoli also. The learned Counsel for the appellants has submitted that the High Court had erred in failing to consider objections to the testimony of the only eye witness relied upon by it.

3. Learned counsel for the State of Rajasthan had contended that the High Court was in error in holding that Champoli, P.W. 5, was the only reliable witness. Learned counsel attempted to take us through the evidence of each of the other alleged five eye witnesses and submitted that it was not unacceptable. We will, therefore, consider the objections of the High Court to the evidence of these five alleged eye witnesses, namely, Shri Das, P.W. 1, Basantilal, P.W. 2, Ramjilal, P.W. 3, Lohde, P.W. 6, and Banwari, P.W. 7, before taking up the evidence of Champoli, P.W. 5.

4. Shri Das, P.W. 1, apart from being a chance witness from another village, stated that he had not been examined by the police although he was according to himself, present in the village Timava to witness the occurrence in the morning as well as the one in the evening, and, for some unexplained reason, remained in the village until the next morning when a police Head Constable came to the spot. He stated that he informed the Head Constable that he was a witness of the murder. But, in the Committing Magistrate s Court, he had definitely stated that the Head Constable neither enquired anything from him nor did he tell him that he was a