Judgment

BEG, J. :- The three appellants Laxman (aged 30 at the time of trial), Sopan (aged 18 at the time of trial) and Sakharam (aged 40 years at the time of trial), residents of village Walana were acquitted of charges under Section 302 read with S. 34 I.P.C. by the learned Sessions Judge of Parbhani. The trial court had declared the testimony of the only eye witness, Sudam Sakharam, P.W. 17, to be unworthy of credence. Neither the several dying declarations of the deceased Narain Rao in which he gave out the names of the three appellants as his assailants nor other facts and circumstances, such as the recovery on a pointing out by Sopan of the "Rumna said to have been used for the murderous attack, were held by the trial Court to be sufficient to corroborate the version of the eye witness. On an appeal against the acquittal, a Division Bench of the High Court of Bombay had elaborately discussed each one of the reasons given by the learned Sessions Judge for discarding the testimony of Sudam, corroborated by other facts and circumstances, and found the logic behind the trial court s reasoning to be unsound. The High Court had also criticised the learned Sessions Judge in treating certain omissions from the previous statements of Sudam as damaging contradictions without complying with the provisions of Section 145 of Evidence Act. It had relied on Tehsildar Singh v. State of U. P., AIR 1959 SC 1012 to support its views on the requirements of S. 145 of Evidence Act. The High Court set aside the acquittal of the three appellants and convicted them under Section 302, I.P.C. read with S. 34, IPC and sentenced them to imprisonment for life.

2. In the appeal by special leave, now before us, the learned counsel for the appellants has criticised the approach of the High Court, its findings on individual items of evidence, and its view that the omissions from previous statements of the alleged eye witness Sudam could not affect his credibility. After having examined the judgments of the trial court and the High Court and relevant pieces of evidence in the case and listening to the arguments of the learned counsel for the appellants, who said all that could be urged to support this appeal, and learned counsel for the respondent State, we think that the appreciation of the evidence by the High Court was undoubtedly far superior and that interference with the trial Court s judgment of acquittal was justified. Nevertheless, we find that there is an aspect of the case relating to Sopan, who was a student aged about 18 years at the time of the alleged offence, which has not been given due importance by the High Court so as to determine whether this appellant was entitled, as we think he is, to the benefit of doubt as regards his alleged participation in the actual commission of an offence.

3. The account of the occurrence given by Sudam, P. W. 17 may be summarised as follows:

4. The witness, who knew Narainrao, Sarpanch of Walana, had been engaged by the Sarpanch to assist him in the supervising the construction of a road under a contract. The Sarpanch got a commission and the witness got Rs. 3 per day. He left Walana with the Sarpanch at 8.00 a.m. for village Mannas Pimpri to pay the wages of the labourers on 30th April, 1966, which was a Saturday. Wages used to be paid on Saturdays. Laxman, appellant, met and followed them on the way saying that he too had to go to Mannas Pimpri. As the party reached Mahboob s field, Laxman lifted and tucked in his Dhoti like a wrestler. Then, Laxman suddenly caught hold of Narayan s right leg, and, putting his left hand on his back, felled Narainrao on the ground face downwards. Narainrao s hands were under his body. Laxman caught and then sat on Narainrao s neck. Narainrao raised a hue and cry. When the witness tried to restrain Laxman and caught his hand, he was warned that he would be killed if he interfered. Just then, the witness saw Sopan and Sakharam, brother and cousin of Laxman, emerging from a m