JUDGMENT

KOSHAL, J. :— This appeal by special leave is directed against the judgment dated 21st Oct. 1976 of the High Court of Gujarat affirming the conviction of the appellant in respect of an offence under S. 302 read with S. 34 of the I. P. C. as also of one under S. 326 of that Code and upholding the sentence of imprisonment for life on the first count and of rigorous imprisonment for a year coupled with a fine of Rs. 300 on the second.

2. The appellant was tried along with 10 others on the murder charge. It was the case for the prosecution that all the 11 accused had intentionally caused the death of one Bawaji in prosecution of their common object, or, in the alternative in furtherance of their common intention. The charge under S. 326 of the I. P.C. arises out of an injury suffered by Shakrabhai Bavabhai (P. W. 7), according to whom it had been inflicted by the appellant.

3. The occurrence is said to have consisted of two incidents, which took place in village Khandhali on the third February, 1975 one at the Irrigation Store and, the other at the house of the deceased. In the first incident the culprits were said to be accused Nos. 1 to 3 (accused No. 2 being the appellant before us). In the other incident all the 11 accused were said to have participated and that is the incident which, according to the case of the prosecution, resulted in the death of the victim.

The ocular evidence consisted of the testimony. of Bai Mani (P. W. 1), Bai Laxmiben (P. W. 5) and Bai Shantaben (P. W. 6), who are the widow, the daughter and the brothers wife respectively of the deceased. Both the courts found that this testimony was unreliable in numerous particulars and it was on that account that the co-accused of the appellant were acquitted in two stages.

4. We do not find that we can really distinguish the case of the appellant from that of accused Nos. 1 and 3 in so far as the unreliability of the ocular evidence is concerned. We have gone through the judgment of both the courts below and are of the opinion that although Bai Mani (P. W. 1) may well be held to have witnessed the occurrence at the house of the deceased it is not safe to act on her word in respect of the participation of any particular accused or of the part, attributed to him or her. In this connection it is noteworthy that in the statement (Ex. 17) which Bai Mani (P. W. 1) made to Police Sub-Inspector Ranchhbhai Bhailalbhai (P. W. 13) the stand taken-was that the appellant was armed with a stick during the incident which took place at the house of the deceased. At the trial, however, all the three eye-witnesses stated unanimously that he was armed with a Dharia and this improvement was obviously resorted to so that the appellant could be held responsible for the fatal injury. Be that as it may, we cannot persuade ourselves to hold that although the ocular evidence was not trustworthy enough for a conviction of accused Nos. 1 to 10, implicit reliance can be placed on it in the case of the appellant who, in our opinion must be given the benefit of the same doubt which made it imperative for the two courts below to acquit his co-accused. The reasonable possibility of the appellant, having been roped in so far as the second incident is concerned can itself not be ruled out Accordingly, we acquit him of the charge under S. 302 read with S. 34 of the I. P. C. and accept the appeal to that extent. His conviction of an offence under S. 326 ad the Code and the sentence unposed upon him. in consequence are, however confirmed.

Order accordingly

For Citation : AIR 1982 SC 1022