JUDGMENT

Criminal appeal No. 108 of 1981 is taken on board along with Criminal appeal No; 102 of 1981.

2. The above two appeals are preferred by the appellants in the respective cases challenging the correctness of the common judgment rendered by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeals Nos. 425 and 397 of 1975, respectively. For the convenience and proper understanding of the case, we would like to refer the appellants herein in the order as arrayed in the trial court. The appellants in the Criminal Appeal No. 102 of 1981 were accused Nos. 2-4 before the trial court and the appellant in Criminal Appeal No. 108 of 1981 was Accused No. 5. As we have come to know during the hearing of C.A. No. 102/81 that there is another connected criminal appeal being criminal appeal No. 108 of 1981 preferred by the 5th accused, we, after issuing notice to the learned counsel Dr. N. M. Ghatate, have called for the file of the criminal appeal No. 108 of 1981 and heard that appeal also along with criminal appeal No. 102 of 1981.

2A. The brief facts of thc case are as follows:-

On 5-7-74, the deceased Ravi Tiwari along with his friends viz. Shiv Shankar (P.W. 1), Munnilal (P.W. 2) and Rhola (PW-3) had gone to witness a second show cinema at Shyam Talkies. When they were purchasing tickets at the counter, the fifth accused abused them. PW-1 thought that the fifth accused was only abusing him as he had beaten the fifth accused on an earlier occasion. After witnessing the show they all came out and found all the accused persons numbering to six inclusive of these accused persons 2-5 standing near the gate with tabbal and lathies. When the deceased and his friends reached near a hotel on their way to their home they found all the accused persons standing on the way. Suspecting a foul play, they all turned back so that they would retreat through a road which runs behind the main hospital at Bilaspur. It appears from the evidence that when P.W. 1 and his friends reached near the back portion of the District hospital, the accused came near them from the opposite direction in two Rickshaws and directed them not to move away. The fifth accused caught hold of the deceased and beat him. Whilst the beating was going on, the other accused persons joined the accused No. 5. On being frightened P.W. I took to his heels and ran into the hospital and hid himself in a room. He left the hospital at 5 a.m. in the morning, met his father PW. 15 and narrated the incident. On the advice of his father he went to the Police Station and lodged a report at 7 a.m. On the basis of the report given by the P.W. 1, a case was registered and investigated, by P.W. 19, the Sub-Inspector of Police. P.W. 18, the medical officer conducted the post-mortem examination on the dead body of the deceased and found seven incised wounds and one stab wound, all of different dimensions on different parts of the body. A stab wound on the left side of the chest was penetrating the thorax causing wound on the left ventricle of the heart. After completing the investigation, the charge-sheet was filed against all the six accused persons.

3. To substantiate the charge, the prosecution examined P.Ws. 1, 2 and 3 of whom P.Ws. 1 and 3 were treated as hostile to the prosecution as these two witnesses resiled from their earlier statements given during the investigation. Hence the prosecution rested its case only on the sole direct testimony of P.W. 1. The trial court for the reasnns assigned in its judgment found that the prosecution has not made out the case against the first and sixth accused and acquitted them of the offence, charged, and found only these four accused, namely, accused Nos. 2-5, guilty of the offence of murder, convicted them thereunder and sentenced them as aforementioned. On being aggrieved by the judgment of the trial court, accused Nos. 2-4 preferred a separate criminal appeal while the 5th accused filed another criminal appeal as already mentioned in the earlie