JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in these appeals is to the judgment of a Division Bench of the Allahabad High Court directing acquittal of the respondents. By the impugned judgment two appeals were disposed of. The appellant-accused in each case had questioned correctness of the judgment rendered by learned 9th Additional Sessions Judge, Kanpur in ST Case Nos. 190 of 1979 and 212 of 1979. Each was convicted for offence punishable under Section 302 read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) respectively. Additionally, accused Surender was convicted for offence punishable under Section 354 IPC.

2. Prosecution version as unfolded during trial is as follows:

In the evening of 20.3.1979 at about 6.00 pm Km. Sharmi (PW 4) was going to attend the call of nature. She was moving few steps ahead of Km. Munni. It is alleged that at the relevant moment Surendra and Suresh accosted Km. Sharmi. They told her to accompany them into Arhar field and with that intent they also held her hands. On the alarm raised by her Km. Munni rushed to her rescue. At this, both the accused persons took to their heels. On her return to the house, Km Sharmi (P.W.4) narrated the incident to her maternal uncle Krishanapal, the deceased in the incident, and Vijaypal (P.W.3). Both the brothers, went to the house of accused Sheo Lal, and made a complaint about the shameful behavior of his son and nephew. Having made the complaint they came back to their house.

The deceased, Krishnapal, and his brother Vijayapal were relaxing and smoking Bidis on the Chabutara, which abuts their house. A burning lantern was also hanging near the grass-cutting machine. A lamp was also burning at the main door of the house. At about 8.00 P.M. Sheo Lal accompanied by Suresh and Surendra came to the house of Krishanapal, deceased. Sheo Lal and Suresh were armed with Lathis and Surendra was armed with a knife. Immediately on their arrival near the deceased, they started hurling abuses and said that since they are maligning his family, inflicted lathi injuries upon the deceased and Surendra attacked him with knife. The hue and cry raised by the deceased attracted Ratipal (P.W1), Chandrapal (P.W.2), Km. Sharmi (P.W.4) and some other family members to the spot. Ratipal was also possessing a torch in his hand. Chandrapal was also attacked with lathis when he tried to intercede. He had sustained lathi injuries. As a result of the injuries sustained, Krishanapal fell down and died instantaneously. The accused persons withdrew thereafter.

The F.I.R. of the incident was lodged by Vijaypal (P.W.3). The written report is Ext. Ka.l. It was scribed by Rampal and was lodged at P.S. Bidhnoo at 11.15 P.M. He was accompanied to the police station by Ratipal, Chandrapal and Rampal. The chick is Ext. Ka. 2. It was prepared by P.W. Lallan Singh, Head Moharir.

Chandrapal (P.W.2) was sent from the police station to the Primary Health Center, Bidhnoo for medical examination of his injuries. He was escorted by constable Mahipal (P.W.5), for that purpose.

After completion of investigation charge sheet was filed. As the accused persons pleaded innocence trial was held. The trial court recorded conviction. As noted above separate appeals were filed by each one of the accused persons which were disposed of by the common judgment directing their acquittal. The stand of the accused appellant before the High Court was that the motive suggested is clearly unacceptable as the parties are inter-se related and it is improbable that the accused persons will tried to molest their cousin (PW 4) in the manner as alleged by the prosecution. It was submitted that the incident has not occurred in the manner alleged and the FIR was ante dated. The trial court placed reliance on the evidence of four eye witnesses PW 1 to PW4. The High Court noted that so far as the motive is concerned the only witness is PW 4. The High Court accepted the defence ve