Judgment

P. K. GOSWAMI, J.- There are cases where crimes are established but criminals participation is shrouded in suspicion. This is one such case.

2. Three murders were committed in the course of a dacoity during the early part of the night on 20-4-1972, at about 9.00 P. M. All the inmates of the house under attack had not then finished their meals. Lights were burning. The village was awake. Accused are known and of the neighbourhood combining with four unknown persons. They came armed with firearms. The fire was opened and two men and one woman fell to the fatal bullets.

3. Shrieks and shouts came from the house as well as from the housetop where two insiders took position, torchlight with one of them, shouting frantically for help. A large number of men gathered at the gate, some of them, even while dacoity was going on inside. A fire was lit at the gate to add to the moonlight to enable recognition of the dacoits.

4. What does it all lead to/ Only three inmates, PWs. 1 to 3, an inimical neighbour (PW 4) and a witness (P W. 5), out of the hundred who gathered and who had not even been examined by the police during the investigation, are before us to testify to the guilt of the four assailants awaiting their death sentence under Sec. 396, I. P. C. or 302/149, I. P. C.

5. A perusal of the High Court judgment shows that it was more confined to the proof of the crime than to a close scrutiny about the complicity of the accused.

6. The High Court in agreement with the Sessions Judge found that the witnesses were truthful since their evidence was corroborated by medical evidence, the tattooing and scorching signs which are inevitable in any gunshot injury.

7. Who doubts the dacoity and the accompanying murders? But did the neighbouring enemies take part in the dacoity? That is the principal question which has to be established beyond reasonable doubt on the evidence of the five witnesses.

8. Accused Ram Lakhan Singh, Lalloo Singh, Shitla Baksh Singh and Rameshwar Singh were convicted by the Sessions Judge under Section 396 I. P. C. and in the alternative under Section 302/149, I. P. C. and sentenced to death. They were also convicted under Sections 148, 395 and 324/ 149, I. P. C. and variously sentenced. The High Court affirmed the conviction and sentence. Hence this appeal by special leave.

9. The occurrence took place at village Jafrapur about twelve miles from Jagatpur Police Station in the district of Rae Bareilly.

10. At village Jafrapur, there was a very well-to-do joint family of three generations living together in a large two-storied house. The family owns substantial cultivation, besides flour, saw and oil mills. The patriarch of the family is deceased Shiv Bahadur Singh (55) who was also Pradhan of the village. The other members of the family, all living together, are his son, Udairaj Singh and his wife deceased Smt. Lakhpat (36) and their sons, Ram Naresh Singh (22) (PW 1), deceased Ram Jas Singh (20) and Ram Kumar Singh (5) and daughters, Ram Kumari (14) (PW 3) and Kumari Nirmala (8). Smt. Rajwati (17) (PW 2), wife of Ram Naresh Singh and Smt. Saroj, wife of deceased Ram Jas Singh, were also living there.

11. The house of the accused Jai Singh, Lalloo Singh and Rameshwar Singh is close to the residence of Shiv Bahadur Singh. In the same village Jafrapur, there was another family of accused Ram Lakhan Singh and his daughter was married to accused Shitla Baksh Singh of Manehru at a distance of about one mile from Jafrapur. It appears the case of accused Jai Singh was separated and he is not before us.

12. The two families of the accused were at daggers drawn with the family of the deceased. For years there have been civil and criminal litigation between them and some were pending even on the date of occrrence. Proceedings were instituted by the police against both the parties under Section 107, Cr. P. C. These were also pending on the date of occurrence. In connection with the case under Section 107, Cr. P. C. guns of U