Judgment

REDDY, J.:- This is an appeal by the State against the judgment of the Allahabad High Court.

2. 18 persons were tried by the IInd Additional District & Sessions Judge, Kheri for several offences under Ss. 148, 302, 323, 304, 395, 396, I.P.C. They were alleged to have committed dacoity and murdered five persons on the intervening night of 1st and 2nd November, 1972 in the house of Kallaktar, one of the deceased in village Bamhniyarpur in Kheri District. It was also alleged that these bandits took away Km. Sarla from that house whose dead body was discovered lateron in a field. According to the prosecution while one of the deceased Kallaktar, his brother and another deceased were undergoing imprisonment in the jail, Amar Singh, brother of the accused Mulaim Singh, who was residing in the house of Kallaktar developed illicit intimacy with Km. Sarla. After the release of Kallaktar and his other associates mysteriously Amar Singh disappeared and it was suspected that Kallaktar and his family members were responsible for his disappearance. Since then there was enmity. Therefore, all the 18 accused raided the house of Kallaktar and committed these offences.

3. The learned Sessions Judge sentenced four persons to death and he also convicted  four others and sentenced them to imprisonment for life. He, however, acquitted three of the accused. The convicted accused appealed to the High Court and the State also preferred an appeal against the order of the acquittal of the three accused. The High Court, however, only confirmed the conviction of the four accused including Ramesh Chander who was sentenced to death. The other three persons who were also sentenced to death as well as the remaining of the convicted accused were all acquitted. The appeal filed by the State was dismissed. The death sentence of Ramesh Chander was executed.

4. The State filed a special leave petition against 11 of the remaining accused respondents. But leave was granted only in respect of respondent Nos. 1, 2 and 3 i.e. Lalla Singh, Ram Swaroop and Mulaim Singh, accused Nos. 1, 10 and 11 respectively. During the pendency of the appeal Lalla Singh, respondent No. 1 died. Therefore, in this appeal we are concerned only with the remaining two respondents, Ram Swaroop and .Mulaim Singh, accused Nos. 10 and 11 respectively.

5. The learned counsel for the State submits that PWs 2 and 4 have identified Mulaim Singh and PWs 12 and 13 have identified respondent No. 3 Ram Swaroop and the weapons were also recovered from them. It is also his submission that the trial court has analysed the evidence against these two respondents and was satisfied about their guilt and the reasoning of the High Court for interfering against this conviction is wholly unsound. To appreciate this argument it may not be necessary for us to refer to the evidence of all these four witnesses. We shall examine the findings of the trial court as well as the appellate court for the purpose of appreciating the submissions made. The trial court held that the prosecution case about the illicit intimacy between Amar Singh and Km. Sarla should be believed. PWs 2 and 4 Smt. Rama Devi and Kamla Devi deposed that about 25 persons entered the house of Kallaktar. According to M 2 and 4, Mulaim Singh was not known to them and they were made to identify Mulaim Singh in the identification parade. The accused Mulaim Singh took the plea that he was very well known to PWs 2 and 4 and his village is only two miles away from the village of Kallaktar and that his brother Amar Singh was living in the house of Kallaktar and he used to visit. The learned Sessions Judge was not prepared to accept this plea of the accused. The other circumstances relied upon by the prosecution are that he had a motive to attack the house of Kallaktar and kill the members of his family. It can thus be seen that the culpability of Mulaim Singh, respondent No. 2, mainly resisted the evidence of PWs2 and 4. The learned Sessions Judge very much