Judgment

DWIVEDI, J. :- The appellants along with six more were tried by the Additional Sessions Judge, Shajahanpur, for various offences including the offence under S. 302 read with S. 140 I.P.C. He convicted nine persons and acquitted one of them, Noorbeg. Majeedbeg was sentenced to death, - and the rest to life imprisonment for the offence under S. 302 read with S. 149. I.P.C. They were also awarded different sentences for other offences.

2. All the nine persons appealed to the High Court from the judgment of the Sessions Judge. The High Court acquitted four of them and maintained the conviction of the remaining five. The sentence of death awarded to Majeedbeg, appellant, was, however, converted into imprisonment for life. The sentences of the remaining four appellants, namely, Azizbeg, Maheedbeg, Maseedbeg and Rashidbeg were affirmed. They have now filed this appeal from the judgment of the High Court. They were jointly tried in two sessions trials numbers 104 and 105 of 1969 for the murder of two persons Chitubeg and Arifbeg. Briefly stated, the prosecution case was this: Azizbeg, the appellant, used to tease Saheb Noor, a daughter of Chitubeg. So there was bad blood between Chitubeg and Noorbeg, father of Azizbeg. On 16-7-1969 Chitubeg had invited the wife of Noorbeg to his house for tea and there had given her a beating. A report was lodged of the incident in the police station. On the same day, at about 3 or 4 p.m. Chitubeg with his son Arifbeg was going towards his field. When they reached near Munirbeg s field, Majeedbeg, appellant, fired a gun shot. The shot hit Chitubeg. Azizbeg, appellant fired another gun shot. This shot hit Arifbeg on his left thigh. Both Chitubeg and Arifbeg fell down on the ground. Thereafter Azizbeg, Rasheedbeg and Majeedbeg, inflicted lathi and farshi injuries on them. Chitubeg died on the spot. The shrieks of Arifbeg were heard by his uncle Sardarbeg, who was working in a nearby field. He rushed to the spot. Rasheedbeg, aimed his gun at him. Sardarbeg raised an alarm, and the accused fled away. It is said that the rest of the five accused were armed with guns, farshis and axes. Arifbeg succumbed to his injuries on 24-8-1969.

3. All the accused pleaded not guilty. They further said that they have been falsely implicated due to enmity.

4. The only direct evidence is that of Sardarbeg, uncle of Arifbeg. As regards the murder of Arifbeg there is an additional evidence. It consists of four dying declarations of Arifbeg two of them are oral, and the remaining two in writing. The oral dying declarations were made, to Majeed Khan and Sardarbeg. The written dying declarations were made to L. N. Dubey, Investigating Officer, and Dr. S. P. Jain in the Sujalpur hospital. the dying declaration recorded by the Investigating Officer is Ex. P. 10 and the one recorded by Dr. S. P. Jain is Ex. P. 5, Ex. P. 10 was recorded earlier in time than Ex. P. 5.

5. The Sessions Judge does not appear to have relied on the oral dying declaration said to have been made to Majeed Khan, the brother-in-law of the deceased Chitubeg. He has relied on the oral evidence of Sardarbeg, the oral dying declaration made to him and the two written dying declarations of Arifbeg. So he held all the accused except Noorbeg guilty of the murder of Chitubeg and Arifbeg.

6. The High Court has disbelieved Sardarbeg for various reasons. The High Court has said: "Therefore about the actual incident the statement of Sardarbeg should be omitted altogether. In the result, there was no legal evidence of the guilt of the nine persons convicted by the Sessions Judge for the murder of Chitubeg. The High Court said: "The conclusion therefore is that so far as the murder of Chitubeg is concerned, after discarding of Sardarbeg s evidence there is no evidence about the actual killing of Chitubeg. Accordingly, the High Court acquitted all the nine persons of the murder of Chitubeg.

7. The High Court then proceeded to discuss the evidence in regard to the mur