Judgment

MISRA, J.:- The present appeal under Section, 2 of the SC (Enlargement of the Criminal Appellate Jurisdiction) Act is directed against the judgment of the High Court of Allahabad dated 17th of September, 1975 setting aside the order of acquittal passed by the Sessions Judge and convicting the appellants under Section 302 read with Section 34, I. P. C. and sentencing them to undergo imprisonment for life.

2. It appears that wife of Babu, appellant No. 1 had been enticed away. He therefore, filed a complaint on 17th of July, 1969 against Dhani Ram, the deceased, his brother Ghurka, their maternal uncle Halka and one Ram Charan under Section 498, I. P. C. The prosecution case as unfolded in the first information report and the evidence is that Dhani Ram, deceased, used to live at the house of his father-in-law in village Kuretha. On 7th of October, 1969 he came to the house of his father Ajudhya in village Therro for getting his lands ploughed. Next day at about 9 A. M. he along with his father left village Therro for village Kuretha. His father was going there for getting seeds from one of Dhani Rams friends. When the two reached the field of Malkhan, which is said to be near the temple of Ram Kund, the three accused came out from inside the jhunri field of Malkhan and started beating Dhani Ram with lathis. Tulaiyan, appellant No. 3 caught hold of Ajudhya, the father of Dhani Ram and prevented him from having his son rescued. The other two continued beating Dhani Ram to death. The first information report was lodged at the police station at a distance of about 12 miles at 5.30 P. M. by Ajudhya. Sub-Inspector Prem Narain reached the spot at 3 A. M. on 9th October. He found the dead body of Dhani Ram lying on the way between the fields of Halka and Malkhan. He prepared the challan of the dead body and a letter for post-mortem and sent the dead body for post-mortem. Thereafter be investigated the case and submitted the charge-sheet against the three appellants.

3. The accused denied the charge. Babu said that the case was started against him as he had filed a complaint under S. 498, I. P. C. against Halka and three others. Tulaiyan in his defence said that he had been implicated as he was a witness for Babu in the criminal case under Section 498, I. P. C.

4. According to the doctor, who conducted the post-mortem, the death bad taken place at about 48 hours before post-mortem. He, however, admitted that there could be a difference, of two to four hours either way in the duration given by him. Post-mortem report showed the stomach and bladder of Dhani Ram empty. There was faecal matter at places in the large intestine. There was also faecal matter stuck to the addah dhoti which Dhani Ram was wearing.

5. The prosecution produced three witnesses to prove its case. On appraisal of evidence the Sessions Judge came to the conclusion that the evidence produced by the prosecution was too feeble to base any conviction on that. In his opinion the witnesses could not be said to be independent a and they were mere chance witnesses. He further found that the probability that Dhani Ram was attacked while it was dark, before he had evacuated or taken his breakfast could not be weeded out and in all probability the occurrence had taken place not at the place alleged by the prosecution. On these findings he acquitted all the accused.

6. On appeal, however, the High Court set aside the order of acquittal and convicted the appellants under Section 302 read with Section 34, I. P. C. and sentenced each of them to undergo imprisonment for life.

7. The circumstances which weighed with the Sessions Court for disbelieving the evidence of the prosecution, in our opinion, appear to be weighty. According to prosecution, Dhani Ram had come to help his father in ploughing his fields on 7th October, 1969, but from the evidence on record it clear that he came in the evening of 7th October to village Therro and left the same for village Kuretha the next day at 9