Judgment

DR A.S. ANAND, J.- These two appeals, by special leave, arise out of a common judgment of the High Court of Judicature, Appellate Side, at Bombay (Nagpur Bench) dated 27th, 28th and 31st October, 1988, confirming the death sentence passed by the Addl. Sessions Judge, Chandrapur for an offence under Section 302 IPC on five appellants in Criminal Appeal No. 201 of 1989. Three convicts were acquitted by the High Court and Criminal Appeal No. 466 of 1989 has been filed by the State of Maharashtra against their acquittal. This judgment will dispose of both the appeals.

2. Nine accused persons, namely, Rampal, Fulchand, Babulal, Sheoprasad alias Dhunda Chunbaliya, Basawan, Shamlal, Pratap, Ramkishore and Ramcharan, were sent up for trial for committing the murder of Tanba Gedam, Baldeosingh, Raman Chandra, Prakash Vehadkar and Raju Deshmukh and for causing injuries to Surendra PW 31, Mahendrasingh PW 33 and Doma PW 5 on July 3, 1984 between 7.30 p.m. and 10 p.m. on the Highway Chandrapur-Ballarshah Road while committing dacoity. (One other accused who had also been arrayed by the police died before the trial in police custody). They were tried for offences under Sections 302, 307, 342 read with Section 149 and Sections 395 and 396 of IPC. Accused 1 Ramcharan Rahidas turned an approver and was examined as such. The learned Addl. Sessions Judge accepting the testimony of the approver and the other prosecution evidence, convicted all the eight accused mentioned above and awarded the sentence of death to all the eight accused for the offence under Sections 302/149 IPC, and for the offences under Sections 307 and 395, the accused were sentenced to suffer rigorous imprisonment for two months and to pay a fine of Rs 50 each and in default they were directed to suffer rigorous imprisonment for seven days. The learned Addl. Sessions Judge submitted the proceedings to the High Court for confirmation of the sentence of death and the convicted eight accused also filed a criminal appeal challenging their conviction and sentence in the High Court. While the appeal of appellants Basawan Rahidas, Pratap Rahidas and Ramkishore Rahidas was accepted and they were acquitted of all the charges, the appeal filed by Rampal and four others was dismissed and their conviction under Section 302 IPC was maintained. The High Court also confirmed the sentence of death on Rampal and the other four appellants, who have filed Criminal Appeal No. 201 of 1989. The State of Maharashtra has filed Criminal Appeal No. 466 of 1989 against the acquittal of Basawan and two others.

3. The prosecution case is that on July 3, 1984, near K.M. No. 9 on Chandrapur-Ballarshah Road which is a part of Highway No. 84, construction of two buildings of a seed centre was in progress. Doma and Tanba were acting as watchmen at the construction site. At about 7.30 p.m., while Tanba and Doma were present at the site, they heard the approaching movement of some persons. One of those persons on reaching near Doma and Tanba picked up a bamboo stick. Four other persons surrounded Doma while two others started assaulting Tanba with bricks, as a result whereof Tanba fell down. The miscreants assaulted Doma and Tanba with bricks, stones and rafters and tied them by removing the dhoti which Tanba was wearing and dragged them both to a distance of about 25 ft. and ultimately threw them in a ditch, which was at some distance away from the main road. The assailants on hearing the sound of a two-wheeler approaching, went up to the main road and assaulted the rider of the two-wheeler Raman Chandra. After giving beating to him, he was dragged and thrown near the road. Mahendrasingh and Baldeosingh were coming on a scooter from the Ballarshah side and they were also assaulted by the assailants with rafters and sticks. A bag containing Rs 7040 and some documents was snatched from them. As a result of the beating, Mahendrasingh and Baldeosingh became unconscious. Baldeosingh died on the spot. The assa