JUDGMENT

The appellants are A-1, A-4 and A-5, Malkhan Singh, Vishwanath Singh and Vishram Singh. They along with four others were charged with an offence under S. 302 read with S. 149 and other offence. The trial court convicted six accused. The case was separated as against one Hardas who has been absconding. They were convicted under S. 302, IPC read with Ss. 149 and 148 and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for two years respectively. In addition A-1 also was convicted for an offence under S. 404, IPC and was sentenced to undergo rigorous imprisonment for one year. All the sentences were directed to run concurrently. On appeal, the High Court confirmed the convictions and sentences of the appellants. It acquitted Raghunath Singh, Tahar Singh and Gajraj, A-2, A-3 and A-6 respectively. Their acquittal appears to have become final since the State is not able to state Whether it filed any appeal. Therefore, we are concerned with the appellants in this case.

2. It is the case of the prosecution that Jawaharlal, the deceased, PW 1 Motilal, PW-3 Rameswar were going together in a. Tonga to Atta. When they reached near the bus stand at Atta, at about 9.00 a.m. the appellants and others stopped the Tonga. A-1 exhorted others to attack the deceased. Thereon the deceased, PW- 1 and PW 3 jumped out from the Tonga and the deceased started running towards the land of Bharat Singh. A-1 shot at him and thereafter A-2 also shot at the deceased. Subsequently A-1 again shot at the deceased. A-4 and A-5 attacked him with knives. PW I and PW 3 ran helter skelter. PW 1 ran towards the Police Station and submitted a report Ex. kha. 2 to the S. H. 0. PW 6 at about 10.30 a.m. Thereafter the S.H.O. investigated the offences and apprehended some of the accused and some of them surrendered in the Court. Though in the F.I.R. the presence of number of witnesses has been mentioned, ultimately PW 1, PW 3 and PW4 were examined as eye-witnesses. The trial court and the High Court disbelieved the evidence of PW 4. The High Court found, as a fact, that PW 3 is an independent witness. He has no axe to grind against the appellant. His evidence corroborated the evidence of PW 1. The High Court believing that the 8 gun shots injuries are only as a result of two shots which were said to have been given by A- 1, acquitted A-2. A-3 and A-6 were also acquitted. We need not go into the reasons for their acquittal for the reason that we have no appeal against them before us, though we feel that the acquittal was not justified on the basis of the evidence on record. Shri A. K. Srivastava, learned counsel for the appellants has strenuously contended that the High Court having disbelieved the evidence of the direct witnesses as against A-2, A-3 and A-6 the substratum of the prosecution case has been knocked of its bottom, it is difficult to rely on the self same evidence to base conviction of the appellants. It is also contended that the independent witnesses have been cited in the F. I. R. and in the charge-sheet as well. The omission to examine them is fatal to the prosecution case and the appellants are therefore entitled to the benefit. Counsel laid emphasis on the evidence of the driver of the Tonga who is direct and natural witness and the omission to examine him is fatal to the prosecution case. It is further contended that the medical evidence does not corroborate the evidence as regards the appellants involvement is concerned and, therefore, the same benefit as extended to A-2, A-3 and A-6 should be given to the appellant as well.

3. He has taken us through the evidence on record and we have independently subjected the evidence of PW 1 and PW 3 to critical examination. The High Court has carefully analysed the evidence of PW 1 and PW 3. It has given cogent reasons to accept the evidence of PW 3 as an independent witness. Even now also we are not persuaded to differ from the conclusion reached by the High Court that PW 3 is