Judgment

BEG, J. :- The appellants Raghunandan, Ganga Sahai, Ghalendra, Khem Singh and Sohan Singh, in the two Criminal Appeals now before us by special leave were tried by a Civil and Sessions Judge of Moradabad for various offences punishable under Sections 147, 148, 302, 307, 323 and 452 read with Section 149 Indian penal Code. Raghunandan was held guilty of the offence of murder by shooting one Sriram with a gun on 12-12-1969, at about 1 p.m. while the deceased was sitting in front of his cattle shed in his order courtyard and talking to Hari Singh, a neighbour, who was also injured by gun shots. The appellants Ganga Sahai and Sohan Singh were held guilty of offences punishable under Section 148 Indian Penal Code while Khem Singh and Ghalendra were found guilty punishable under Section 147 Indian Penal Code. All the appellants were held guilty of offences punishable under Ss. 307 and 323 read with Section 149 Indian Penal Code and Section 452 Indian Penal Code. But, no separate sentences were passed against any of the accused persons for these offences as Raghunandan was sentenced to death under Section 302 Indian Penal Code and the other four appellants were sentenced to life imprisonment under Section 302 read with Section 149 Indian Penal Code. The High Court of Allahabad had accepted the death reference, and, dismissing the appeals of all the appellants, had confirmed their sentences.

2. The Trial Court as well as the High Court had recorded concurrent findings of fact that the appellants formed themselves into an unlawful assembly armed with a gun, ballams, and lathis, and shot Sriram and Hari Singh, and also injured Smt. Brahma, P.W.2, the wife of Hari Singh, who is said to have covered her husband Hari Singh during the attack, and, Durga Prasad, P.W.6, the brother of the murdered map. The prosecution case is also supported by Bhai Singh, P.W.1, a brother of Raghunandan, and by Rameshwar, P.W.5, a resident of Village Karimpur, who was said to be passing by at the time of the occurrence.

3. The appellants pleaded that they had been falsely implicated due to enmity. They produced Gokul, D.W.1, who deposed about an occurrence which was alleged to have taken place at the house of Hari Singh in the early hours of the morning presumably of 12th of December, 1969. He stated that the cause of the occurrence was that Rohan, the brother of Hari Singh, had abducted Smt. Rukia of Naurangabad and brother her to village Karimpur where she was living. He asserted that her husband and other residents of Naurangabad, forming a party of ten to twelve, had come to take her away. Its members were said to have been armed with a Gun, Ballams, and Lathis, which they were alleged to have used against Hari Singh and the deceased Sriram and Durga Prasad. He deposed that Sriram, Hari Singh, and Durga Prasad were fixed at. He stated that the Naurangabad party caught hold of Smt. Brahma and that her husband, Hari Singh, had tried to save her. Gokul alleged that Sriram was struck by gun shots. He suggested that Hari Singh may also have been similarly injured. He stated that Durga Prasad was not hit.

4. The Trial Court, which had the advantage of seeing the witnesses depose, accepted the evidence of the four eye-witnesses, who included two injured persons. It rejected the story put forward by Gokul in defence as incredible. Apart from the fact that the defence version did not clearly explain the Ballam injury on Durga Prasad, the explanation for the gun shot wounds on the chest, stomach, and forearm of Sriram, which had resulted in his death, suggesting that he was the principal target of the attack, did not quite fit in with the defence version. The Trial Court had also observed that the accused had reserved their defence up to the last stage and had not revealed it earlier either in the Committing Magistrate s Court or at the time of applying for bail.

5. It is true that what seems to be the principal motive set up by the prosecution helps the defenc