Judgment

CHANDRACHUD, J. :- This appeal by special leave is directed against a judgment of the High Court at Patna confirming the conviction of appellant 1 under Section 302, Penal Code, that of appellants 2 to 8 under Section 302 read with Section 149 and the sentence of life imprisonment imposed on each of them. Appellant 6 has also been convicted under S. 323 but no separate sentence has been passed for that offence.

2. At about 1 a.m. on the night between 12th and 13th May, 1966, an eighteen-year old boy, Arjun, was done to death. He was sleeping in the courtyard of his house and he and his brother Nakuldeo Thakur (P. W. 1) were occupying the same cot. Nakuldeo noticed that certain persons were standing near the cot and one of them gave a lead to the others to beat. Nakuldeo escaped with his torch and before he had run a few paces he heard Arjun saying "Ram Pukar Kaka, do not kill me . Ram Pukar is appellant 1 before us. It is alleged that thereafter Ram Pukar attacked Arjun with a spear and some of the other appellants attacked Nakuldeo himself with lathis.

3. Apart from Nakuldeo, two other brothers of the deceased Arjun, Rajendar (P.W. 6) and Dwapar (P.W. 7) also claimed to have witnessesd the incident. The learned Sessions Judge rejected their claim that they were eye-witnesses and the High Court has endorsed that finding. Before undertaking the assessment of Nakuldeo s evidence the High Court observed. "The position, therefore, is that P.W. 1 is the solitary witness of the murder ...The whole question for consideration, therefore, is whether the evidence of Nakuldeo (P.W. 1) is fit to be safely relied upon. According to the High Court the evidence of Rajendar, Dwapar and of Bachia (P. W. 11), the mother of Arjun could only be used to corroborate the evidence of Nakuldeo.

4. The case must therefore stand or fall by the evidence of Nakuldeo. A serious infirmity from which his evidence suffers is that admittedly several people from the neighbourhood met him at his house after the murder of his brother but he did not disclose the names of the assailants to anyone whatsoever. The other members of his family also did not mention the names of the assailants to anyone of those persons. Nakuldeo is a man of 24 and at the material time he was employed at the Air Force Station, Agra. It is impossible to accept his claim that he was so overcome by grief that he could not even mention the names of the assailants to anyone. The incident had taken place on a dark night and there was no light either in the courtyard or in the house with the help of which Arjun s assailants could be seen and identified. The significant failure on the part of Nakuldeo to disclose the names of the assailants is only consistent with the conclusion that he was unable to identify them.

5. Nakuldeo has said in his evidence that he was able to identify the assailants of his brother in the light of his torch which he flashed while his brother was being assaulted. It seems to us surprising that though Nakuldeo claims to have submitted a statement in writing to the Sub-Inspector of Police at about 10 O clock the next morning, he did not refer to the torchlight therein. The statement alleged to have been submitted by Nakuldeo was never disclosed at the trial by the prosecution but the High Court condoned that lapse by saying that the statement tendered by Nakuldeo was copied verbatim in the case diary. On a perusal of that diary the High Court found that the statement incorporated therein contained a reference to the torchlight flashed by Nakuldeo. If that be so, it is difficult to appreciate how the statement in the case diary could be said to be a verbatim reproduction of the statement submitted by Nakuldeo.-

6. Nakuldeo had no compunction in saying in his examination inchief that one of the appellants, Bishwanath Pandey, had fired a gun shot at Dwapar which caused injuries to him. In cross-examination Nakuldeo stated that he did not remember whether he saw Bishwa