J.M. SHELAT, J.
1. This appeal, by special leave, is directed against the order and judgment passed by the High Court of Allahabad confirming the order of conviction and sentence of death passed against the appellant under Section 302 of the Penal Code by the Sessions Judge, Etah.
2. Seven persons, Sobran Singh Lodha, Lal Sahai, Gorey Lal, Megh Nath, Banwari, Chandi Lal and the appellant were put up for trial before the Session Judge, Etah, for the murder of one Roop Lal. The first six of these accused persons were related to each other and were at the material time residing in the village, Amrauli. Deceased, Roop Lal was also residing in the same village along with his brothers, Dallo, and Roshan. There was hostility between the deceased and his brothers on the one hand and the said first six accused.
3. The prosecution case was that at about 9 a.m. on August 17, 1967, when Roop Lal was sitting on the Chaupal of one Sri Kishan, the seven accused, of whom the said Sobran Lodha, Megh Nath, Chandi Lal and the appellant were armed with guns, went to where the deceased was sitting and fired their guns at him as a result of which Roop Lal fell injured. Roop Lal died soon after he was removed to the hospital at Aligunj.
4. In support of its case, the prosecution examined in all eleven witnesses, of whom PWs 1 to 5 claimed to be eye witnesses and who deposed that they had seen the accused, who were armed with guns, firing at Roop Lal. Besides these five witnesses, the prosecution examined two chawkidars, Jiwa Ram and Ganga Ram, PWs 6 and 7, who deposed that immediately after the said incident of firing they noticed the appellant running away from the scene of the offence with a gun in his hand whereupon Jiwa Ram, PW 6, felled him on the ground with a stick blow on his head and captured him with his gun. On opening the gun the chawkidar found a spent cartridge inside it and three live cartridges in the appellant's shirt pocket. They brought the appellant along with the said gun, the spent cartridge inside the gun and the three live cartridges to where Roop Lal was lying injured and then produced him with the said gun and cartridges at the Aligunj police station. The chawkidars' evidence was that while they were bringing the appellant to the scene of the offence, the appellant made a confession that he had killed Roop Lal at the instance of the said Sobran Lodha.
5. The evidence before the Sessions Judge thus consisted of: (a) the testimony of the five witnesses who claimed to be eye witnesses, (b) the testimony of the two chawkidars, (c) the capture by them of the appellant Immediately after the shooting while he was running away from the place of the incident with the said gun and the said cartridges, (d) his confession before the two chawkidars, and (e) the medical evidence and the usual evidence as to the investigation.
6. The evidence of Sri Kishan, PW 3, at whose Chaupal Roop Lal was sitting when his assailants arrived and shot at him, was inter alia as follows:
“Then accused Sobran Lodha fired a shot at Roop Lal. Roop Lal on this got up from where he had been sitting on the cot and stood behind the ‘aar’ of the mud pillar of the marha. Then accused persons Sobran Thakur, Sobran Lodha, Chandi Lal and Megh Nath fired shots at Roop Lal. Roop Lal was struck by these shots and fell down.”
That was also the evidence of PW I, Dalloo and the other eye witnesses, who claimed to have been present nearby at the time of the shooting. According to this evidence, therefore, five shots in all were fired at Roop Lal from a short distance, two shots by Sobran Lodha and one each by the appellant, Megh Nath and Chandi Lal, all of them being armed with guns.
7. The evidence of Dr Misra, who carried out the autopsy, was that there were only three wounds of entry on the body of Roop Lal, (i) on the forehead, (2) on the left side chest, and (3) on the upper half of the left thigh. A number of pellets were found by him from each of these injuries indicating that the injuries were as a result of the firing from a short distance. It could not be from close range as there was no scorching or blackening. The fact that there were only three wounds of entry indicate that if the assailants had fired at Roop Lal five times as deposed to by the eye witnesses, two shots had missed their aim. Which two shots out of the five shots fired at Roop Lal failed to strike their target was not and perhaps could not be ascertained.
8. The Trial Judge after hearing the evidence of the eye witnesses came to the conclusion that they were partisan witnesses in that they were not only related to each other and the victim but also bore hostility towards the first six accused. He, therefore, declined to accept their claim to be the eye witnesses except that of Sri Kishan, PW 3, whom he considered a natural witness as the shooting had taken place in his chaupal arid in the morning, when it would not be unusual for him to be present. Since that witness also belonged by relationship to the group of the rest of the eyewitnesses and, therefore, hostile towards the first six accused, he held that though it was natural for him to be present at the time of the incident, he would accept his evidence only to the extent that it was corroborated by other reliable evidence. The only other evidence corroborating him was that of the two chawkidars. But that evidence was only with regard to the appellant. Therefore, he accepted Sri Kishan's evidence to that extent only and relying on that and the evidence of the two chawkidars he convicted the appellant under Section 302 and gave him the extreme sentence, but acquitted the other six accused.
9. On appeal by the appellant against the said conviction and sentence and the usual reference for confirmation by the Sessions Judge, the High Court held that there was enough satisfactory evidence to warrant the conviction of the appellant under Section 302. The High Court observed that even discarding the evidence of the rest of the eyewitnesses, there was the evidence of Sri Kishan, corroborated by the evidence of the two chawkidars insofar as the appellant was concerned. There was, however, one serious infirmity in the evidence of chawkidar, Jiwa Ram, in that though he had at first involved the appellant only, he had tried to involve at a later stage in his evidence the other accused also, possibly with a view to fall in line with the other witnesses. That part of his evidence was not accepted by either the Sessions Judge or the High Court. Nonetheless, so far as the appellant was concerned, there was the evidence of PW 7, Ganga Ram, the other chawkidar, which both the Sessions Judge and the High Court considered to be altogether independent. The evidence of that chawkidar was only against the appellant and together with his evidence as to the confession made by the appellant before the two of them, there was sufficient independent testimony to corroborate both Sri Kishan and Jiwa Ram. On that footing the High Court dismissed the appeal of the appellant and accepted the reference against him made by the Trial Judge.
10. Counsel for the appellant argued that the evidence as regards the confession made by the appellant was not acceptable as the stick blow inflicted on the appellant's head by Jiwa Ram must have rendered him unconscious and the appellant could not have been in a position to make such a confession. Secondly, Jiwa Ram's evidence as to the confession could not be accepted as he had falsely involved the acquitted accused also in an endeavour to support the other witnesses whom the trial Judge found unreliable. The first contention cannot be sustained as the evidence clearly shows that although the stick blow given by Jiwa Ram felled the appellant the injury was a simple one as soon from the evidence of Dr Batra, who had examined him. That injury, therefore, could not have rendered him unconscious. Indeed, the evidence was that the two chawkidars, immediately after capturing him, brought him to the scene of the offence walking from the place where he was caught by them. The evidence also shows that he became unconscious after he had been brought to the police station at Aligunj. There is, therefore, clear evidence on record to show that the appellant was in a position to make the confession deposed to by the chawkidars. As regards the second contention, even though the evidence of Jiwa Ram suffers from the infirmity of his having tried on second thought to support the other witnesses it is fully corroborated by the evidence of the other chawkidar, Ganga Ram, PW 7, whom both the Sessions Judge and the High Court regarded as an entirely independent and reliable witness. There was, besides, circumstantial evidence consisting of (a) the appellant having been found running away from the scene of the offence immediately after the chawkidars heard the shooting, and (b) his having a gun with him with a spent cartridge in it showing that he had fired that gun and also three live cartridges still with him in his pocket. That evidence together with Sri Kishan's evidence, which was accepted by both the courts, was sufficient to bring house to the appellant his active participation in the murder of Roop Lal.
11. An attempt was made through the evidence of Kunwar Sen, DW 2, that Ganga Ram was in some way related to the other prosecution witnesses. But that part of his evidence was rejected by both the courts and in our view rightly. Ganga Ram's evidence was thus an independent evidence and it corroborated the evidence of Jiwa Ram and Sri Kishan which otherwise suffered from the infirmities referred to earlier. Even if the evidence as to the confession were to be disregarded, there was sufficient satisfactory evidence on which the appellant could be convicted as being one having participated in the crime.
12. The only substantial question, therefore, which can arise in the appeal is whether he could be convicted under Section 302 simpliciter and upon that basis given the extreme penalty of death. As aforesaid, there can be no doubt as to his participation in the offence and of his having been found with the gun with which he was armed at the time. But the case as laid by the prosecution was that in all five shots were fired at Roop Lal by four of his assailants, namely, two by Sobran Lodha and three by three others including the appellant, who were then armed with firearms. But only three shots appear to have hit the deceased and two, therefore, had missed him. Whose shots hit the deceased and whose missed him is, on the state of the evidence on record, impossible to determine because, except for saying that the four assailants who were armed with guns had fired at Roop Lal, the witnesses did not and perhaps could not say whose shot or shots struck the deceased.
13. The High Court, however, has observed:
“We are aware that the gun shot injuries found on the body of Roop Lal could not have been the result of a single shot fired by the appellant and very probably there were other who also were with him but the injuries caused by each shot fired was sufficient to cause the death of Roop Lal in the ordinary course. We, hence hold that the appellant has committed the murder of Roop Lal and, accordingly we maintain the conviction of the appellant under Section 302 of the Indian Penal Code.”
14. It is clear from these observations that the High Court held the appellant guilty of murder on the basis: (a) that the appellant's shot struck the deceased, (b) that the injury caused by him was sufficient in the ordinary course of nature to cause death, and (c) consequently, he was liable to be convicted under Section 302 simpliciter. The basis on which the High Court came to this conclusion is, however, not supported by the evidence on the record. There is no evidence to show that the shot fired by the appellant hit the deceased and that his shot was not one of the two which had missed the target. Even assuming that his shot did hit the deceased it is impossible to say which of the three wounds of entry could be attributed to him. The opinion of Dr Misra was not that each of the three injuries was sufficient in the ordinary course of nature to cause death. Indeed, it could not be because one of them was on the thigh, a part not vital. His opinion was that the injuries found by him were sufficient to cause death which clearly means that they were cumulatively, but not individually, sufficient in the ordinary course of nature to cause death. The result is that appellant could have been convicted under Section 302, read with Section 34 and not under Section 302 simpliciter.
15. It is clear that the Trial Judge imposed the extreme penalty of death on the appellant and the High Court confirmed it on the footing that of the three wounds of entry found by Dr Misra the appellant was responsible for one of them and that each of the three wounds of entry was individually sufficient in the ordinary course of nature to cause death. That basis, we apprehend, is not sustainable for the reasons already stated, and therefore, the sentence awarded to the appellant loses its foundation. His conviction under Section 302 simpliciter, therefore, has to be set aside and a conviction under Section 302, read with Section 34 has to be substituted in its place. For the reasons aforesaid, although the murder was deliberate and the appellant took part in it at the instance of some others, it is impossible to say, in the absence of any acceptable evidence, as to what motivated the appellant to participate in the crime. In the circumstances, we think that the sentence imposed on him should be one of life imprisonment.
16. We order accordingly. The order of conviction and sentence is that the appellant is found guilty under Section 302, read with Section 34 and is to suffer rigourous imprisonment for life. The orders of the Sessions Judge and the High Court are set aside and the appeal is allowed to the extent aforesaid.