Judgment

VARADARAJAN, J.:- This appeal has been filed against the judgment of the Allahabad High Court in Government Appeal No. 6 of 1970 in which the appellants were found guilty of offences under Ss. 302, 323, I.P.C. both read with S. 149, I.P.C. and under S. 147, I.P.C. They have been sentenced to imprisonment for life under S. 302 read with S. 149, I.P.C. and to rigorous imprisonment for one year each under S. 323 read with S. 149, I.P.C. and S. 147, I.P.C. The appellants were acquitted by the learned Sessions Judge, Azamgarh. Government Appeal No. 6 of 1970 was filed against the acquittal by the trial Court.

2. The case of the prosecution has been set out in detail in the judgment of the trial Court and the High Court and we do not think it necessary to set it out in detail. in this judgment. In short the case of the prosecution is that the appellants Kedar Rai, Subedar Rai and Ram Avtar Rai are brothers who live in the same house situate about 30 steps south of the house of the deceased, Radhe Raman who was the youngest son of Swami Nath, P. W.1. The appellants Udho Rai and Ramesh Rai are brothers who are living close to the house of the deceased and P. W. 1. There were some proceedings under S. 107 of the Criminal P. C. between P. W. 1 and his pattidar, Ram Narain Rai and these appellants were siding the opponent of P. W. 1. In this background on 16-10-1968 at about 7.30 am. when P. W. 1 was urinating at the back of his house, Radhe Raman shouted and P. W. 1 rushed out and saw the appellants beating Radhe Raman with lathis, about 15 paces away from the house. P.W. 1 shouted and wanted to stop the appellants from beating the deceased but they beat him up also with lathis. After receiving the injuries Radhe Raman fell on the ground and the appellants continued to beat him even thereafter. Radhe Raman received as many as 34 injuries of which injuries Nos. 1, 3, 5, 6 and 14 were lacerated injuries and the others were contusions and abrasions. These injuries have been found by Dr. N. Dutta, P. W. 5 who conducted autopsy on the body of the deceased, to be sufficient generally to cause death and to have been due to assault with lathis. P. W. 1 also had as many as nine lathi injuries. The first Information. Report about the occurrence was given by P. W. 1 at the Police Station situate six miles away from the scene of occurrence at 11.30 a. m. on the same day. In that First Information Report, P. Ws. 2 and 3 and some others are named as eye witnesses.

3. The case of the prosecution rests on the evidence of P. Ws. 1 to 3. As stated already P. W. 1 is the father of the deceased Radhe Raman. P. W. 3 Chandrama Devi is wife of the deceased. P. W. 2 Meena Kumari is daughter of the deceaseds sister.

4. The defence of the appellants was one of denial and it was their case that the occurrence has taken place 21/2 kilometers away from the house of the deceased at about 4.30 am. and that the case has been foisted against them falsely because they were siding the opponent of P. W. 1 in the proceedings taken under S. 107 of the Criminal P. C.

5. The learned Sessions Judge accepted the case of the defence that the occurrence had taken place 2 1/2 kilometers away from the house of the deceased and P. W. 1 and not in front of their house. In that view and.. also because the blood-stained clothes of P. Ws. 2 and 3 alleged to have been recovered from them by the Investigating Officer, had not been sent for chemical analysis, the trial Court refused to place any reliance on evidence of P. Ws. 2 and 3. The trial court refused to accept the evidence of even P. W. 1 due to certain discrepancies in his evidence. Thus the trial court found that the appellants were not guilty and acquitted them.

6. In the appeal the High Court accepted the case of the prosecution that the occurrence had taken place at 7.30 am. in front of the house of the deceased and P. W. 1. The High Court accepted the evidence of P. Ws. 1, 2 and 3 and. expressed the view that the discrepa