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PETITIONER: KARNESH KUMAR SINGH & ORS.

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 15/04/1968

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1402            1968 SCR  (3) 774

ACT: Indian  Penal  Code,  1860, ss. 302,  201  and  149--Whether inconsistencies   and  discrepancies  in   evidence   showed miscarriage of justice--Four out of ten appellants sentenced to death and others to life imprisonment--Distinction  based on   the  four  being  armed  with   dangerous   weapons--If sustainable on evidence. Evidence  Act,  1872,  s.  114(8)--Adverse  inference   when prosecution does not produce some of the eye-witnesses--When may be drawn.

HEADNOTE: The ten appellants were convicted under ss. 302 and 201 both read  with  s. 149 of the I.P.C. mainly on the  evidence  of four eye-witnesses who were members of the family of the two murdered persons.  Four of the appellants were sentenced  to death and the rest to imprisonment for life.  The High Court confirmed  the convictions and sentences. in appeal to  this Court  by  special leave it was contended,  inter  alia,  on behalf  of  the  appellants  that  (i)  there  were  various discrepancies  and inconsistencies in the  evidence  showing miscarriage  of  justice; (ii) though two  independent  eye- witnesses  were available they were purposely  excluded  and only the family members were examined as eye-witnesses;  and the  High Court had wrongly refused to draw from their  non- examination  an  adverse inference under s.  114(g)  of  the Evidence Act; and (iii) the sentences on the appellants were wrongly confirmed by the High Court. HELD  :  (i)  There  was no reason  to  interfere  with  the concurrent  findings of the trial court and the, High  Court that  the appellants were responsible for the deaths of  the two  deceased persons and were guilty of ,the offences  they were charged with. [782 E] (ii) The  prosecutor need not examine witnesses who, in  his opinion,  have  not witnessed the  incident.   Normally,  he ought  to  examine all the eye-witnesses in support  of  his case.   But in a case where a large number of  persons  have witnessed  the incident, it is open to him to make a  selec- tion which must, however, be fair and honest and not with  a view  to  suppress inconvenient witnesses.  If it  is  shown that  persons  who  had witnessed  the  incident  have  been

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deliberately  kept  back,  the court  may  draw  an  adverse inference  and  in  a proper case record  such  failure.  as constituting  a  serious  infirmity  in  the  proof  of  the prosecution case. [781 G-H; 782 A] In the present case, the prosecution had explained that  the two  independent  eye-witnesses  were  not  necessary.   The defence  remained content with that explanation and did  not ask  the other concerned witnesses any questions  to  elicit why these two persons were considered unnecessary witnesses. Furthermore,  there was nothing in the evidence  to  suggest that  they were not produced because they would have  turned out  to  be inconvenient witnesses.  It  was  not  therefore possible  to  say  that  the  prosecution  had  deliberately withheld  these two persons for any oblique motive  or  that the  High  Court ought to have drawn an  adverse  inference. [782 C-D] (iii)     The   sentence  of  death  on  four  of  the   ten appellants  must be set aside and the sentence  of  rigorous life imprisonment substituted therefore. 775 In imposing the sentence of death on four of the  appellants the  trial  court made a distinction between  them  and  the others  as  three of them were armed with firearms  and  the fourth with a hatchet.  This reason for imposing the extreme penalty on the four appellants could not be sustained on the evidence  as  the  others  were  also  armed  with  equally, dangerous  weapons.   In the absence of evidence as  to  who inflicted  the fatal blows, the same punishment should  have been imposed on all of them. [783 C-D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 213  of 1967. Appeal by special leave from the, judgment and order,  dated May 19, 1967 of the Allahabad High Court (Lucknow Bench)  at Lucknow in Criminal Appeal No. 118 of 1967 and capital  sen- tence No. 11 of 1967. R.   K.  Garg, S. C. Agarwala, D. P. Singh and A. K.  Gupta, for the appellants. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Shelat, J.-This appeal, by special leave is directed against the judgment of the High Court of Allahabad which  confirmed the convictions and sentences passed by the Sessions  Judge, Hardoi,  in  respect  of the murders of Lal  Singh  and  his father Harihar.  The ten appellants on being convicted under ss.  302  and 201 read with S. 149 of the  Penal  Code  were awarded  various sentences.  Four of them,  namely,  Karnesh Kumar,  Krishna  Kumar, Kaushal Kumar  and  Chhetrapal  were awarded death sentence and the rest imprisonment for life. At the material time, the two deceased, along with the  mem- bers  of their family, and the appellants lived  in  village Nir  in  District Hardoi, and, except for  appellants  Jugal Kishore  and  his  brother Kailash Narain,  they  are  close relations,  their  common ancestor being one  Jhabha  Singh. The evidence, however, shows a long-standing enmity  between the members of the branch of Sobaran Singh, one of the  sons of  Jhabha  Singh,  on  the one hand and  the  rest  of  the descendants  of  Jhabha Singh on the other.  It  also  shows that  since  1950, there has been intermittently  civil  and criminal  litigation between the parties, the last  of  such litigation before the incident in question being in  respect of  an  incident  which took place on  April  3,  1966  when

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appellant  Ram  Kumar charged the deceased Harihar  and  Lal Singh,  and witnesses Jitendra and Virendra and  two  others with  rioting and witness Virendra, in turn, filed  a  cross complaint against the appellants and some others. According  to  the prosecution, at about 1 p.m. on  June  5, 1966,  Lal Singh was irrigating his field with  canal  water when appellants L8 Sup.  C.1.168-10 776 Karnesh  and  Avdesh diverted the water  into  their  field. There  was an exchange of abuses between them in the  course of which appellant Karnesh was said to have threatened  that he  would  not rest until Lal Singh was done to  death.   At about 5.30 that evening, Jitendra, Virendra and Girendra, P. Ws.  1, 6 and 8 were in the main room of the  Chaupal  where Lal  Singh lived and Lal Singh was in a room nearby.   Fifty paces  away from this house is the house where the  deceased Harihar  lived,  Suddenly, a shout was heard to  the  effect that Lal Singh should be dragged out.  On hearing the shout, these  witnesses and Lal Singh came out.  The witnesses  saw appellants Krishna and Chhetrapal armed with guns, appellant Karnesh  with  a pistol, Rain Kumar and Jugal  Kishore  with spears,  appellants Kaushal and Mahendra with banks and  the rest with lathis.  As soon as Lal Singh came out, appellants Krishna, Chhetrapal and Karnesh simultaneously fired at  him whereupon Lal Singh fell on the ground.  On being threatened that  the  witnesses would also be shot, they ran  away  and stood  at some distance.  Five of these appellants,  namely, Chhetrapal,  Kaushal,  Mahendra, Kailash and  Jugal  Kishore then  ran to Harihar’s house where appellant  Jugal  Kishore struck Harihar with a spear in his face and then  appellants Kaushal and Jugal Kishore dragged him to where Lal Singh had fallen.   Chhetrapal  then fired at Harihar  with  his  gun; Jugal Kishore gave another blow with his spear in the  chest and the rest beat him with bankas and lathis.  Harihar  also died  on  the  spot.   Appellants  Kailash,  Jugal  Kishore, Kaushal  and Mahendra followed by Chhetrapal with  his  gun, lifted  Harihar’s  body to the field of one Sita  Ram  where they  set  fire to it.  The other five appellants  took  Lal Singh’s body to the Bathis of P.W. 4, Abdul Bari, and  burnt it there on a heal) of cowdung cakes.  Having thus tried  to do  away  with  the  dead  bodies,  appellants  Kaushal  and Mahendra scraped the blood.stained earth where Lal Singh had fallen  as also the drops of blood which had fallen  on  the way. P.   W.  1,  Jitendra, started on cycle to the  Kotwali  six miles  away  and  lodged  the  F.I.R.  at  about  6-45  P.M. Inspector Jaswant Singh, P. W. 17, started for the scene  of offence reaching there at about 7-45 P.M. The fires were put out but Lal Singh’s body had practically been burnt out with the  result that the Inspector could collect only his  bones and ashes.  But he was able to recover the half burnt  body. of Harihar.  That night he recorded the statements of P. Ws. 1, 6, 7, 8, 14 and of certain other persons.  On the 7th and 8th he recorded further statements.  On June 20, he recorded the  statements of Raghubar, P. W. 9 and Gopali, P.  W.  12. It appears that statements of these witnesses were  recorded late as these and other residents, presumably on account  of fear of reprisals or to avoid having to figure as witnesses, had fled from the village. 777 The evidence on which the prosecution mainly relied was that of the four eye witnesses.  of these, Jitendra, P. W. 1, the son  and  brother  of Harihar and  Lal  Singh  respectively, Virendra, P. W. 6, his cousin, and Girendra, P. W. 8, a  boy of  14  years of age and the younger brother  of  Lal  Singh

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deposed  to  the  assault  by the  appellants  on  both  the deceased.  Santosh Kumari, P. W. 7, the daughter of Harihar, deposed  only  to  the  assault on  Harihar  in  the  house. Besides  this evidence, the prosecution  examined  Raghubar, Jeet,  Gopali and Surat Singh, P. Ws. 9, 11, 12 and 14,  the neighbours  of  the deceased, who in one part or  the  other corroborated  the  eye witnesses.   Gopali’s  evidence  was, however, the only direct evidence as to the scrapping of the blood-stained  earth  by  two of  the  appellants  but  that evidence was not relied upon by the High Court on the ground that  his  name  was not mentioned in  the  F.I.R.  and  his statement  was  recorded  late.   There  was,  however,  the evidence  of the eye witnesses that blood had dropped  where Lal  Singh had fallen and of the Investigating Officer  that when  he inspected the site that night, though he  found  no blood  marks,  he noticed that the earth at that  place  had been  scrapped.   It  is  clear  that,  no  one  except  the assailants, who had burnt of the dead bodies of Harihar  and Lal  Singh to do, away with evidence as to the two  murders, would  be  interested  also in doing away  with  an  equally important evidence as to the place where Lal Singh had  been killed  by  scrapping  off the blood where  he  had  fallen. Scrapping of blood from that place was thus in line with and part  of the stratagem of burning the bodies of the  victims so  as not to leave any evidence of the killing of  the  two men.  This part of the evidence lends support to  Jitendra’s case  that  Lal Singh was fired at and fell at or  near  the intersection of the roads just outside his house. It  is  true  that only these four  members  of  the  family figured  as eye-witnesses.  But that fact alone cannot  mean that  P.  W. 1 or the investigating  agency  excluded  other available  independent  witnesses.  This is clear  from  the fact that the F.I.R. mentions a number of persons whom P. W. 1. thought to be eye-witnesses.  There is evidence that  the incident  had created panic in the village and a  number  of residents had fled and had stayed away possibly with a  view to  avoid having to figure as witnesses.  It  is,  therefore hardly  surprising that only the members of the family  came forward  as  eye-witnesses.   But as  they  were  interested witnesses  both  by  reason of their being  members  of  the family  and their sharing the hostility of the  two  victims towards  the appellants, their evidence had to  be  examined with  care  and  caution.   But  there  was   circumstantial evidence  to lend support to their account of the  incident. That  evidence established the following facts (1)  the  Ion standing enmity between the parties, (2) the incident having taken  place at about 5-30 P.m., (3) the burning of the  two bodies by the appel- 778 lants, (4) the scrapping of the earth to wipe out the blood- stains (5)     P.  Ws.  6 and 8 having run to the  house  of Surat Singh, P. W. 14,   the  village  Pradhan  and   having informed him of the incident, (6)  P.W. 1 lodging the F.I.R. without  any  delay and giving therein the  details  of  the incident, the names of the appellants and of witnesses  whom he  thought  to  be eye witnesses and (7)  the  injuries  on Harihar’s  body which could still be seen by Dr.  Srivastava though it had been burnt, indicating three types of  weapons having  been  deployed against him, namely,  a  fire-arm,  a spear and a sharp cutting instrument. The trial court and the High Court found from this  evidence that the account of the incident given by the witnesses  was acceptable  despite certain discrepancies therein,  that  it occurred at about 5-30 P.m., that Lal Singh was shot at  and killed  just  outside  his house,  that  Harihar  was  first

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attacked  inside  his house and then dragged  to  where  Lal Singhs  body lay and was there killed, that  the  appellants were  responsible for the assault and the consequent  deaths of the two victims, that in order to leave no trace of  the, two  assaults  they  burnt the bodies  of  the  victims  and scrapped the earth where blood had fallen, that they  formed an  unlawful  assembly  of which the common  object  was  to murder  the father and the, son and that they  attacked  and killed  both in furtherance of that common object  and  then tried  to do away with the evidence of their acts and  burnt the  two bodies.  These being concurrent findings ,of  fact, we would not normally proceed to review the evidence  unless it is shown that the trial is vitiated by some illegality or irregularity  of procedure or that it was held in  a  manner contrary  to rules of natural justice or the judgment  under appeal  has resulted in gross miscarriage of justice :  (cf. Kirpal Singh v. State of U.P.) Counsel  for the appellants, however, contended that such  a miscarriage,  of justice has resulted in the  present  case. He argued that the trial court and the High Court failed  to appreciate from the evidence on record that the  prosecution had deliberately tried to shift the time of the incident  at 5-30 that evening though the incident must have taken  place subsequently, in order to enable the four witnesses to  pose as  eye  witnesses.   The  evidence  of  Jitendra  and   the Investigating Officer was that the F.I.R. was lodged at 6-45 P.m.  and  that Jitendra had started from the village  at  6 P.m.  on cycle for the police station.  The evidence of  the Investigating.   Officer  also is that he reached  the  spot soon  thereafter,  that the body of Harihar  was  not  fully burnt  out,  and that he could manage to  extract  the  half burnt  body from the fire.  The evidence of  Dr.  Srivastava supports  this evidence in a large measure.  It is  manifest that if the incident took place at night and P. W. 1 bad (1)  [1964] 3 S.C.R. 992, 996. 779 not  seen  it, he could not have reported it to  the  police officer  in time to enable the police officer to  arrive  at the  scene and extract the half burnt body of  Harihar  from the  fire.  This fact clearly supports the prosecution  that the incident took place that evening and not at night.   But reliance was placed on the fact that postmortem  examination on  Harihar’s body was made by Dr. Srivastava at 5  P.m.  on June  6, 1966.  The argument was that if the body  had  been dispatched  to the mortuary soon after it was  recovered  by the  police  officer,  it would have  reached  the  mortuary earlier  and  the  postmortem examination  would  have  been carried  out earlier.  But the evidence of Maqbool Khan,  P. W.  15,  shows that the body was given to him,  at  10  that night,  that,  he  carried it in a  bullock  cart,  that  he started  at about 1 A.m. but on the way he feared  that  the body might be taken away from him and, therefore, he stopped at  an  intervening  village till sunrise  and  reached  the mortuaryat 6-30A.M. It is true that the doctor said that  he performed the post-mortem examination at 5 P.m. and not at 1 p.m.  as  the constable deposed.  Obviously,  the  constable appears  to have delayed in his mission and there was a  gap of time between the body reaching the mortuary and the  time when  the  postmortem examination was  performed.   But  the delay  in the postmortem examination does not mean that  the Investigating  Officer had not handed over the body  to  the constable that night or that the incident did not take place in the evening of the 5th of June or that the F.I.R. was not lodged  at 6-45 P.m. as testified by P. W. 1.  Reliance  was next placed on the evidence of the Magistrate at Hardoi that

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he received the special report about the incident on June 6, 1966.  The contention was that if the Investigating  Officer had sent the special report before he started for the  scene of  the offence, as stated by him, the Magistrate was  bound to receive it on the night of the 5th and not on the 6th  of June.  But the Magistrate admitted that he had not noted the time when he received it on the 6th.  He also admitted  that he  could  not say whether he was in Hardoi on  the  5th  of June, it being a, Sunday, and that it was possible that  his peon  might have received it in the evening of the  5th  and placed  it before him on the 6th of June when he  noted  the date  of its receipt.  There is also evidence of the  Reader to the Superintendent of Police, Hardoi that his office  had received the General Diary of the 5th on the 6th and of  the 6th on the 7th June.  This controversy is set at rest by the evidence  of the Head Constable, P.W. 13, that he  had  sent constable  Abdul Hafir at 7-30 P.m. on the 5th June  to  the Magistrate with the special report and that Abdul Hafiz  had returned  to  the police station at 9-3O  that  night  after delivering  it and that this fact was noted by him  in  Ext. ka-6.   This  evidence establishes  that  the  Investigating Officer  had sent the special report on the 5th of June  and that   report  was  carried  to  Hardoi  that  very   night. Consequently, it must be held that the incident took 780 place  in the evening of the 5th of June, and that P. W.  1. was right when he claimed that he had given the F.I.R. at 6- 45 P.M. The  next  contention was that the place of  attack  on  Lal Singh  was not on the road but in Harihar’s house.  We  find no basis for this contention.  The evidence of witnesses  on the  other  hand,  is  clear  and  there  is  no  reason  to disbelieve  it.  That evidence is supported by the  evidence of  the Police Officer that he found signs of  scrapping  of the earth at the place where, according to the  prosecution, Lal Singh had fallen. The next contention was that witnesses Jitendra and  Santosh Kumari had tried to make improvements in their evidence, the former by stating that the three accused who were armed with firearms had shot simultaneously at Lal Singh though in  the F.I.R. he had only said that three shots were fired  without stating  who had fired them, and the latter by stating  that Jugal  Kishore  had struck his spew in the eye  of  Harihar, which allegation was not borne out by the medical testimony. These  infirmities,  no doubt, are in their  evidence.   But they  were  considered  by  the High Court  and  yet  on  an examination  of  the  entire  evidence,  it  accepted  their evidence  as  reliable.   That three shots  were  fired  was stated  by  witness  Jitendra  both in  the  F.I.R.  and  in evidence.   It may be that from that fact coupled  with  the fact that the three appellants were armed with fire-arms, he might  have  inferred that all the three had fired.   For  a witness  like  him,  it  was possible  not  to  be  able  to distinguish  between  a fact seen by him  and  an  inference drawn  by  him.  Failure to appreciate  such  a  distinction cannot  mean  that he was deliberately  improving  upon  his original version.  As regards Santosh Kumari, a spear injury was  inflicted on Harihar’s face and that injury  must  have covered  his  face  with blood.  It  is  possible  that  she mistook  that injury to be one in the eye, especially as  it in  her  evidence that appellant Jugal Kishore had  at  that time said that Harihar should be struck in his eyes.   These infirmities,  even if they can rightly be so termed,  cannot discredit their testimony so as to render it unacceptable. Counsel  then  argued  that  though P. Ws.  9  and  11  were

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referred  to  in the F.I.R. as eye witnesses, they  did  not come  out in their evidence as eye witnesses and  that  fact showed  that P. W. 1 had tried to introduce them falsely  as eye-  witnesses.   He forgets, however, that there  are  two distinct alternatives, (1) that he saw them at the scene  of the offence after the incident and believed they had seen it and  (2)  that though the witnesses had seen  it,  like  the other  neighbours,  they  preferred not  to  figure  as  eye witnesses  and circumscribed the scope of their evidence  to what  they had seen after the assault.  In either event,  P. W.  1 cannot be said to have falsely tried to usher them  in the F.I.R. as eyewitnesses. 781 The argument which counsel strenuously urged was that though independent  eye  witnesses were available, they  were  pur- posely excluded and only the family members were examined as eye  witnesses.  In this connection he relied on the  F.I.R. where P. Ws. 9 and 11, one Chhuta Bhurji, Alha Singh, Lakhan Singh, Paragu, Parsadi, Sishupal, Girdhari Kachhi and  "some other men" were said to be witnesses.  In his evidence  also P.  W. 1 has mentioned that these persons and a  few  others were  present  at the time of the incident.  And  yet  these persons  were not examined.  The prosecution,  however,  did explain that these persons were not examined either  because they had been won over by the opposite side or because  some of  them  had  failed to identify the  appellants  from  the identification  parades held for them, which,  according  to the prosecution, indicated that they had been won over.  The explanation, however, does not- apply to two persons,  viz., Parsadi  and  Paragu,  for whose  non-examination  the  only explanation   given  was  that  they  were   not   necessary witnesses.   The  High Court does not appear  to  have  been satisfied with this explanation and, therefore, has observed that it would have been better if these two persons had been examined.   At the same time it refused to draw  from  their non-examination- an adverse inference under s. 114(g) of the Evidence Act. Counsel argued that the High Court erred in declining to  do so  and relied on Habeeb Mohammed V. State of  Hyderabad(1), where  it has been observed that it is the bounded  duty  of the  prosecution to examine a material witness  particularly when no allegation has been made that, if produced, he would not speak the truth.  The decision further observes that not only does an adverse inference arise against the prosecution case  from  his  nonproduction  as  a  witness  in  view  of illustration  (g) to section 114, but that the  circumstance of  his being withheld from the court would cast  a  serious reflection on the fairness of the trial.  In Darya Singh  v. State  of  Punjab(1)  also this Court has  observed  that  a prosecutor should never adopt the device of keeping back eye witnesses  only  because  their evidence  is  likely  to  go against the prosecution and that the duty of the  prosecutor is to assist the Court in reaching a proper conclusion.   It is open, however, to the prosecutor not to examine witnesses who  in  his opinion have not witnessed  the  incident,  but normally,  he  ought to examine all ’the  eye  witnesses  in support of his case.  But in a case where a ,large number of persons  have witnessed the incident, it is open to  him  to make a selection.  The selection must, however, be fair  and honest  and  not  with  a  view  to  suppress   inconvenient witnesses.   Therefore, if it is shown that persons who  had witnessed  the  incident have been deliberately  kept  back, the- court may draw an (1) A. I. R. 1954 S.C. 51. (2) [1964] 3 S.C.R. 397, 408,

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782 adverse  inference and in a proper case record such  failure as  constituting  a serious infirmity in the  proof  of  the prosecution case. As stated earlier, it appears that the persons mentioned  by P.  W.  1 were not examined either because  the  prosecution believed that they had been won over by the opposite side or because in the parades held for them they had not identified the  appellants or committed errors.  If that was so, it  is manifest  that no useful purpose would have been  served  by examining  the  persons  who  had  failed  to  identify  the appellants.   But  then neither Parsad nor Paragu  falls  in this category of persons for the explanation given in regard to them was that they were not necessary.  For one reason or the  other the defence seems to have remained  content  with that explanation, for they asked no question either to  P.W. 1  or to the Investigating Officer to elicit why  these  two persons  were considered unnecessary witnesses. , It may  be that  if a clarification had been demanded, they would  have given  some explanation.  Besides, there is nothing  in  the evidence to suggest that they were not produced because they would  have  turned out to be inconvenient  witnesses.   The High  Court on an examination of the evidence held  that  it was  not  possible to say that the prosecution  had  delibe- rately  withheld these two persons for any  oblique  motive. In these circumstances it is difficult to persuade ourselves to  take the view pressed upon us by counsel that  the  High Court ought to have drawn an adverse inference. For  the  reasons  aforesaid, the contentions  of  Mr.  Garg cannot  be  sustained.   Consequently, we do  not  find  any reason  to  interfere with the concurrent  findings  of  the trial  court  and the High Court that  the  appellants  were responsible for the deaths of Lal Singh and Harihar and were guilty of the offences charged against them. As  regards  the  sentence of death  imposed  on  appellants Karnesh,  Krishna, Kaushal and Chhetrapal, it  is  difficult for  us to agree with that order passed by the  trial  court and  confirmed by the High Court.  In imposing the  sentence of  death on these four appellants, the trial court  made  a distinction between them on the one hand and the rest of the appellants  on the other.  The distinction was made  on  the ground that three of them were armed with fire-arms and that they  all fired at Lal Singh simultaneously, that  appellant Chhetrapal  had  shot  at Harihar  also  and  finally,  that appellant  Kaushal had given a hatchet blow to Harihar.   In our  view, the evidence on which this distinction  was  made cannot be said to be fully satisfactory.  It is true that P. W. 1 while giving evidence stated that the three  appellants had  fired simultaneously at Lal Singh, that Chhetrapal  had also  fired at Harihar and that Kaushal had given a  hatchet blow to him.  But the F.I.R. merely states that three  shots were  fired at Lal Singh but does not state that  they  were fired  by the three appellants simultaneously, nor  does  it state that Chhetrapal had fired at Harihar after he had been                             783 dragged  out on the road.  It is hardly conceivable that  if P. W. 1 had seen these appellants firing either at Lal Singh or  at Harihar, he would have forgotten to make  a  positive statement  about it in the F.I.R. In view of this  omission, it  is difficult to build the conclusion with any  certainty on  his subsequent statement that the three  appellants  had simultaneously  fired at Lal Singh and that  Chhetrapal  had shot at Harihar after he had been brought out of the  house. The  possibility of any one or two of them having fired  the three shots in quick succession cannot, therefore, be  ruled

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out.   In that case the distinction made on the  basis  that all  the  three  of them had fired at Lal  Singh  cannot  be sustained.   Therefore, the reason given by the trial  judge for imposing the extreme penalty on these four appellants as against  the rest becomes difficult to sustain.  It is  true that  these four appellants were armed with firearms  and  a hatchet.   But  the  others also  were  armed  with  equally dangerous  weapons,  such as spears and  bankas.   The  said distinction  being  not sustainable, the  proper  punishment that should have been awarded to the four appellants in  the absence  of  clear evidence, as to who inflicted  the  fatal blows,  should have been the same punishment as  imposed  on the  rest. , We have,; therefore, to set aside the  sentence of death imposed on the aforesaid four appellants and impose on  them  the sentence of rigorous  imprisonment  for  life. Except  for  this  modification  the  appeal  fails  and  is dismissed,. R.K.P.S.                        Appeal dismissed. 784