Judgment

Chandrachud, CJI..-Twelve persons were put up for trial before the learned Additional Sessions Judge, Bahraich on various charges, the principal charge being under Section 302 read with Section 149 of the Penal Code. The learned Judge acquitted four persons and convicted the remaining eight of the offences of which they were charged. Two out of those eight persons namely, Chhotey and Ram Manorath were sentenced to death while she remaining six were sentenced to imprisonment for life. The sentences awarded for the other offences were directed to run concurrently with that sentence. The High Court of Allahabad acquitted one more person and convicted the remaining seven. The High Court also upheld the death sentence awarded to Chhotey and Ram Manorath. From out of the seven persons convicted by the High Court, only six are before us since one of them, Baijnath, who was awarded life imprisonment has not appealed from the judgment of the High Court.

2. The incident out of which these proceedings arise took place at about sunset time on December 5, 1973 in a village called Bhawanipur. Four persons died during the course of that incident, namely, Guley, Abbas, Wali Mohammad and Nankau. Guley and Abbas are alleged to have been shot dead by Chhotey while the other two are alleged to have been shot by Ram Manorath. Guley and Abbas died instantaneously, Nankau a little later and Wali Mohammad about a week later.

3. In support of its case the prosecution examined four eyewitnesses: Noor Mohammad PW 1, Shaukat Ali PW 2, Nafees PW 4 and Naeem PW 5. The prosecution also relied on the dying declaration of Wali Mohammad which was recorded by a magistrate. The evidence of these four witnesses as also the dying declaration have been accepted by both the courts.

4. Shri Frank Anthony, who appears on behalf of five out of the six appellants before us, has drawn our attention to various circumstances which according to him render the entire prosecution case suspect and unacceptable. It is urged by the learned counsel that a large number of persons were roped in on mere suspicion which is shown by the very fact that five out of the 12 persons who were mentioned in the first information report were acquitted at one stage or the other for the reason that it would not be safe to accept the evidence led by the prosecution against those persons. The same test, according to the learned counsel, must apply to the cases of the remaining accused also. Having considered this submission and the other submissions made by the learned counsel, we find it difficult to hold that the witnesses have made out an entirely false or concocted case against all the appellants. Out of the four eyewitnesses examined by the prosecution, Noor Mohammad, Shaukat Ali and Nafees were indisputably injured during the course of the incident in question and that circumstance affords a strong guarantee of their presence at the scene of offence. Counsel himself urged that there was no motive for the offence. If that be so, we are unable to understand why the four eyewitnesses should falsely implicate persons against whom they have no grouse. The reason for the acquittal of some of the accused by the trial Court and the High Court is that there was, in the case of some of them, a possibility of mistaken identity while, in regard to some others, the evidence was not of such a nature or character as to justify the acceptance of their complicity beyond a reasonable doubt. The injuries received by Shaukat Ali, PW 2 are quite serious. PW 4, Nafees was not concerned with the incident in any other manner because he was engaged as a mere labourer by the deceased, Wali Mohammad. Insofar as the remaining two witnesses namely, PWs 1 and 5 are concerned, their presence was virtually admitted on behalf of the principal accused Baijnath who has not chosen to file any appeal before us.

5. Though this is the true position, we do not consider it proper to accept wholly the evidence led by the prosec