Judgment

These two appeals are preferred by the above three appellants who were arrayed as accused Nos. 1 to 3 before the trial Court; in that appeal No. 577 of 1979 is preferred by the appellants 1 and 2 and Appeal No. 578 of 1979 is preferred by the third appellant (third accused). These two appeals arise out of the common judgment in Criminal Appeals Nos. 1 and 2 of 1978 rendered by the Addl. Judicial Commissioner of Goa, Daman and Diu at Panaji whereunder these appellants stand convicted under Section 302 read with Section 34 and S. 342 read with Section 34, I.P.C. and sentenced to undergo imprisonment for life for the conviction under Section 302 read with S. 34, I.P.C. From the judgment, it appears that no separate sentence was awarded for the conviction under Section 342 read with S. 34, I. P. C.

2. All these appellants took their trial on the accusation that on 18-2-77 between 5.00 and 8.00 p.m. they in furtherance of their common intention wrongfully confined Orlando DSouza at Francisco Costa Waddo at Utorda by tying him to an electric pole with .ropes and thereafter started beating, branding and applying pressure to his legs with a danda, iron rod, wooden rib and firewood and caused his death in order to prevent the deceased from spreading of scandalous information concerning the alleged illegitimate intimacy between the first appellant and the second appellant.

3. The facts of the case are well set out in extenso both in judgments of the trial Court and the High Court and hence we feel that it is not necessary to reproduce the same except some salient features which will be necessary for the disposal of these two appeals.

4. The first appellant is the wife of the third appellant and the second appellant is the nephew of the first and third appellants, being the son of the sister of the third appellant. According to the prosecution, the second appellant developed illicit intimacy with the first appellant. The deceased who was in the prime of his youth aged about 23 years was making a wide publicity about the alleged intimacy of appellant No. 1 with appellant No. 2. On account of this the appellants, it is stated, have committed this offence. According to the prosecution that on the fateful day - namely on 18-2-77 between 5. 00 p.m. to 8.00 p.m. the appellants caught hold of the deceased, tied him to an electric "pole with a rope and beat him as a result of which the deceased Orlando lost his life. To substantiate this charge against the appellants, the prosecution has examined PWs 4 to 9,10, 14, 15, 16, 16 and 19 as eye witnesses of whom PWs 9, 15 and 16 who were in the nearby liquor bar claim to have seen the deceased having already been tied to the electric pole. The High Court after elaborately examining the entire materials was disinclined to accept the evidence of PWs 4 to 8, 10, 14, 17 and 19 holding thus:

"All these witnesses who claim to have seen the incident both inside and outside the house, did not make any attempt to inform the police or take any effective steps to get Orlando released. In these circumstances and for the reasons already indicated, it is difficult to place reliance on the evidence of PWs 4 to 8, 10, 14, 17 and 19.

5. However, coming to the testimony of the other three witnesses, namely, PWs 9, 15 and 16, the High Court held that their evidence could be accepted and acted upon and finally held that since it was only these three appellants who had tied the deceased to the electric pole, they must be held to be liable to be punished under S. 302 read with S. 34, I.P.C. and accordingly convicted and sentenced all the three as above mentioned. Hence these two appeals.

6. Even in the event of believing the testimony of these witnesses, the question would be whether all or any of them participated in the occurrence and if so, what is the nature of the offence such appellants have committed.

7. The High Court in paragraph 17 of its judgment has culled out the incriminating circumstances tending to prove