Judgement

NATARAJAN, J.:- These appeals by special leave arise out of a common judgment rendered by the Allahabad High Court in three Criminal appeals filed before it by the appellants and one Raj Kishore. Appellant Subash and appellant Shiv Shankar were convicted along with Raj Kishore by the 4th Additional Sessions Judge, Bareilly under S. 302 read with S. 34, Penal Code and S. 324 read with S. 34, Indian Penal Code respectively for having committed the murder of one Ram Babu and for having caused hurt with a knife to witness Dinesh Shankar. For the said convictions they were awarded imprisonment for life and three years R. I., respectively and the sentences were ordered to run concurrently. One Om Kumar who was also sent up for sessions trial under the two charges mentioned above was acquitted by the Sessions Judge. The three convicted persons preferred appeals to the High Court and the High Court has confirmed the convictions and sentences awarded to Subash and Shiv Shankar but acquitted Raj Kishore.

2. The offences in question were committed on March 12,1971 i.e., a day after Holi Festival at about 11 a.m. on the Bareilly-Nainital Road in Bareilly. The prosecution case was that while Shiv Shankar caught hold of Ram Babu, Subash, Raj Kishore and Om Kumar repeatedly stabbed him with knives and caused fatal injuries to him. When Dinesh Shankar (P.W. 2) tried to intercede he was also stabbed by Subash and caused an injury. Besides, Dinesh Shankar (P.W. 2) the occurrence was witnessed by an uncle of Ram Babu viz. Budh Sen (P.W. 1) and Shyam Behari (PW3) and some others. Ram Babu and Dinesh Shankar were taken to the hospital but Ram Babu was pronounced dead in the hospital. The motive for the occurrence was that about 15 or 20 days prior to the occurrence Ram Babu had given a machine part to Subash for being welded but Subash failed to carry out the work; nevertheless he refused to return the machine part without the repair charges being paid to him. Ram Babu refused to pay the charges and there was an altercation but the parties were pacified by Dinesh Shankar and Ram Babu took away the machine part without paying any charges to Subash. The quarrel had taken place about 3 or 4 days before the occurrence. Bearing this grudge in mind, when Ram Babu, accompanied by Budh Sen and Dinesh Shankar was proceeding to Qutabkhana to witness the Holi celebrations, Subash assisted by his three companions attacked Ram Babu in the manner set out earlier and caused fatal injuries to him. There were as many as 14 injuries on Ram Babu among which 7 were punctured wounds. Among the punctured wounds, injuries Nos. 7 and 8 were deep injuries which had injured the pleura, left lung, pericardium and the heart. These, injuries were certified to be sufficient in the ordinary course of nature to cause death. Dinesh Shankar (P.W. 2) also had sustained an incised wound on his left thigh.

3. Budh Sen (PW1) got a report Exhibit Kha 1 written by his son and presented it at the Police Station at 1.12 p.m. Therein he had stated that accused Subash was known to him but the other three assailants were not known to him but another witness Bhuvan Chand examined as C.W . 1, had informed him that one Raja Ram was one of the assailants of Ram Babu. It would appear that subsequently Bhuvan Chand refused to testify out of fear of the accused and hence he was not cited as a witness in the charge-sheet. Even so, having regard to the averments in Exhibit Kha 1, the Sessions Judge examined Bhuvan Chand as a court witness. He, however, failed to corroborate Budh Sen and stated that he did not know anything about the occurrence.

4. Subash was absconding and he surrendered before the court on 12-3-71. He was subsequently questioned by the Investigating Officer and he gave information regarding the names and addresses of the other three assailants. Raj Kishore was arrested on 23-5-1971 and Shiv Shankar was arrested on 14-6-71 from the office of the Central Excise, Bareilly where h