GOPAL & ORS. versus STATE OF TAMIL NADU

GOPAL & ORS. v. STATE OF TAMIL NADU

JANUARY 30, .1986

[V. BAIAKRISHNA ERADI AND B.C. RAY, JJ.]

Constitution of India, 1950, Article 136 -Criminal appeal - Conviction and sentence - Concurrently arrived at by trial and Appellate Courts - Interference by Supreme Court -When arises.

Criminal

Practice and Procedur.e -Sentence -Question of -Supreme Court - When would interfere.

The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of ~ paddy. The local labourers were very 11111ch aggrieved by this bringing of men from outside for harvesting. of paddy. On 25th December, 1968 one Packiriswami Pillai, since deceased, along-with 17 other labourers of Irakkai village was returning home at about S.30 P.M. after harvesting of crops from the fields of P.W.15. They reached the east-west llarijan Street at about 7.30 P.M. There was moon light and electric light. There, P.Ws. 31,32,34 to 44 saw crowd of 10 to 15 persons standing, In that crowd P.Ws. 31,32,34 to 37 saw accused Nos.l and :i. armed with aruvals. The crowd questioned them as to which place they belonged to, whereon they replied that they belong-ed to Irakkai. Immediately, A-1, Gopal cried out ''Do not leave -~,.Irakkai people, cut them, beat them." P.Ws. 31;32,34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. 'nley also saw accused Nos. 1 arul 2 and some others in the crowd lifting the deceased by haruls, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal (A-1) and they were leaving him behind and running. P.Wa. 31,32 and 34 to 37 saw the first accused cutting Packiriswami Pillai with aruval on his neck and on his head. P.Ws. 31,32, • -,. 34,35,36 and 37 ran. towards the Caste Hindu Street and ulti-__ , mately entered into the house of P.W.47. Another crowd of 50-60 persons armed with aruvals and sticks came from the

south and they caused injuries on the persons of P.\ls. 54 and 55 who came out of their house. On getting information at about 8.00 P.M., P.ll.72, the Head Constable, with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P.W.47 as well as collecting the injured P.ll.54 and 55 in the van came to·the Keevalur Police Station where P.ll.79 (Inspector of Police) recorded the state-ment of P.ll.54 and registered the same as Crime No. 326 of 1968. He thereafter recorded the statements. of P.ll.55 and P.lls. 34 to 37 in the Police Station. At about 11.45 P,M, P,\1,79 left for Keezha Vanmani and met P,\1,31 there. Then both of them went to Nadu Street and found the dead body of Packiriswami Pillai with multiple injuries. P.ll. 79 'recorded the statement of P.ll.31 and registered the same as Crime No. 328 of 1968,

Out of 22 accused,the Sessions Judge acquitted 14 and convicted .• namely, accused Nos. l,2,12,f3,17,18,19 and 20 under various offences and sentenced them to suffer rigorous imprisonment fqr various terms. Te Sessions Judge found the .::1 aforesaid accused guilty of various offences on the grounds (1) that there was electric light and also moon light at the time of the occurrence and that P.Ws. 31,32 and 34 to 37 wit-nessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Pillai by Gopal (A-1); (2) that the cryi1,1g out by the deceased Packiriswami Pillai that Gopal (A-1) was cutting him was'in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A-1, Gopal at that lllOllent; (3) that the injuries sustained by P.lls. 34 to 36 with all probabilities establish the presence of these P.lls. at close range 'and seeing the occurrence; and ( 4) that there was also overwhelm-,,'· ing evidence as to the presence of A-1 in the crowd. The appeal of all the 8 accused persons filed before the High Court was dismissed.

Dismissing the appeal to this Court,

HELD : 1. There is no infirmity far less any illegality or failure of justice which would impel the Supreme Court to interfere with the order of conviction and sentence con-currently arrived at by both the courts below. [210 D] 2(i) P.lls. 34 to 37 have ·clearly stated in their deposi-tions that they witnessed A-1 inflict cutting injuries on the(-• neck and head of Packiriswami Pillai after lifting hia along-

W with other accused and carrying him to the east of Harijan If' Street. The court of appeal below hss rightly held thst P.W. 54 was only concerned with the incident thst occurred before his house and, as such, in Exhibit P-11 there was only the reference to the said incident. It was also held thst P.W. 79 in his deposition refuted the suggestion thst he did not examine P.W. 34 to 37 at the time alleged by him. Moreover, all these P.Ws. 34 to 37 sufferred several injuries being

, chased by the crowd while running towards the house of P.W.

·I 47. Tllerefore, evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below thst A-1 caused. fatal cut injuries on the person of deceased Packiri-swami Pillai. (207 A-C]

2(ii) P.W. 65, Assistant Surgeon, Government Hospital, who conducted postmortem also stated in his deposition thst out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. l and 2 which could have been caused by single cut were sufficient in the ordinary A· course of nature to cause death. The doctor has also stated in his evidence thst after the infliction of ·injury No. 1 the . injured could hsve shouted out. There is, therefore, ample evidence to negative the submission thst the accu8ed No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37·stated about the injuries caused by A-1 on deceased Packiriswami Pillai. He also stated thst he heard P.Ws. 34 to 37 uttering Pacldriswami, Packiriswami. It was rightly held by both the courts below thst P.W. 72 was deaf and could not hear whst they told him. The non-mentioning of ·-< attack on Packiriswami Pillai by P.W. 54 in his statement does '-not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.w. 31. (207 D-F]

3(i) P.W. 79 recorded the stateme~t of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording of Statements in plain-sheet instead of in diary form in these circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both . the courts below that the statements of these P.Ws. were recorded by him immediately after recording

-_j the statement of P.w. 54 (Exhibit P-11). (207 H; 208 A]

3(ii) P.Ws. 31,32 and 34 to 37 clearly stated in their evidence that they did not see P.W. l at all. The evidence of P. w. l was that he did not go to Caste Hindu Street at that

time, In view of these evidence, the Court of appeal below held that the evidence of P,W, 72 to the effect that P.w. 1 came near the house of P,W, 47 could not be accepted. It was also pointed out by the Court of appeal below that P.w. 72 haa not spoken about presence of· P,W, 1 at about that time either in Crime No. 326 or in Crime No, 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case, P,W, 72 made the above statement, (208 C-D}

4, It was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P.W. 79 was not l\Ware of the death of Packiriswami Pillai, so he did not consider it grave crime and did not re.gister it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrances namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same trans-action, P,W. 79 further admitted that he ought not to have regi.stered separate case in Crime No. 328 of 1968 on the statement of P.W. 31, It was rightly held by the Court of appeal below that P.w.· 79 adopted irregular procedure in registering separate crime number on the baais of the state-ment of P.w. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31, It was rightly held by the court of aL,eal below that these irregularities committed by P,W, 79 in not recording the statement of P,Ws. 34 to 37 in Case Diary Form and registering the separate crime number. on the statement of P.W. 31 could not militate against the prosecution case. No motive haa been suggested against P.W. 79, (208 G-H; 209 A-Bl

5, The accused 1 and 2 have been convicted by the Courts

below on the finding that the offences charged against them .)-have been proved by the eye witnesses beyond any reasonable doubt, There was no illeg81ity nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in as. 302 and 364 of the Indian Penal Code. Therefore, the Court is not inclined to interfere with the sentences passed by the Courts below. (209 E-F]

State of Maharashtra v. Ha,er Bans George, A.I,R, 1965 S,C. 722 applied.

Pritam Singh v, The State, A,I.R, 1950 S.C, 169 and ( _-Sadlu Singh Baroam Singh v, State of Pepsu, A, I,R, 1954 S,C, 271 referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 234 of 197 3.

From the Judgment and Order· dated 4.-8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971; R.K. Garg, Gopal Singh a11d• L.R; Singh for ·the Appel-lants.

K.G. Bhagat, A. V. Rangam, Umanath Singh, v.c. Nagaraj and R.B. Misra for the Respondent.

The Judgment of the Court was delivered by

B.C, RAY, J, This appeal on spec.fa! leave is directed against the Judgment and Order of the liigh Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No. 23 of 1971 whereby the appeal was d.ismissed and the conviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused nos. 1, 2, 12, lil 13, 17, 18, 19 and 20 were conflrmed.

The prosecution c·ase is as follows:

All the accused appellants are resi.dents of various villages within Keevalur Police Station. The flrst accused is the leader of the Left Communist Party and also of the Harijan Kisans of five neighbouring villages. Accused nos. 17 and 18 are the leaders of the Left Commun! st Party at Keezha Venmanl village. There were serj ous d.i fferences between the Mi rasdars and the Harijan labourers regarding the fixation of wages for harvest. These troubles started in 1967 and the Kisans have , been agi ta ting for higher wages by taking processions and 'convening meetings. There was settlement in 1967 whereby the Mannargudi agreement was made between the partles providl ng for addi.tional half measure of paddy to the Harijan labourers. This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uni.form wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was not paid, the labourers tres-passed into the lands and illegally harvested paddy crops. This created the trouble as the local Harijan labourers refus-, ed to work at low wage and demanded h.fgher wages. There was .::I the Paddy Producers Association havi.ng .its offices in several villages. P.W. 1 Gopal Kri.shna Naidu was the President of

Paddy Producers Associatlon of Nagai Taluk and P,W, 19 Ramu . Pillai was the President of the Association at Irukkai and the deceased Packiriswami Pillai was member of the Association. The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4-1/2 measures of paddy. The local labourers were very much aggrieved by this br:inging of men from outside for harvesting of.paddy.

On 25th December, 1968 Packiriswami Pillai, since deceased, alongwl th other labourers of Irakkai came to harvest the. paddy crops from the fields of the Mirasdar P,W, 15 at ~ about 9.00 a.m. It appears that on apprehending trouble P,W, ' 15 sent Exhi.bi.t P, 9 to the Inspector at Keevalur PoHce Station and Exhibit P. 8 to the Valivalam Police Statlon requesting for sending some police men so that harvesting of crops might be done peacefully, The harvesting of crops was over by 5,30 p.m. and each of the labourers were fed with Sambar Satham. Each of them were paid 4-1/2 measures of paddy per kalam. P.Ws. 25, 26 and one Rangayyan left immediately as., they wanted to go to Thevur for seeing picture. The seventeen Irukkai people started for home sometime thereafter. The Irukkal. labourers re.ached the east-west Harljan Street at about 7.30 p.m. P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramsniam, of the main road. There was moon light and electric light, There were bamboo clusters Jn the form of hood on either side of the east-west Harijan Street near the second electric lamp post from the west. At the east west Harijan Street, P.Ws, 31, 32, 34 to 44 saw crowd of 10 to 15 persons standing. In that crowd PWs. 31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals. The crowd questioned them as to wh.ich place they belonged to, wher.eof!.,>--F they replied that they belonged to Irukkai. Immediately, A-1 Go pal er.led out, "Do not leave Ir.uk.ka:I people, cut them, beat them," crowd of about 50 persons being armed w:i th aruvals, sticks etc. came running towards the lrukkai people. P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pi.llai tripping and falling down near the electrlc lamp post on the Hadjan Street. Accused Nos. 1 and 2 and some other.s :In the crowd also Lifted him by hands, legs and clothes. Then he was carried to some di.stance towards the east. At that tJ.me Pack:I riswami Pillai cried out that he was .being cc;•. by Gopal (A-1) and they ., _,. were leav.ing him behind and running. t.Ws. 31, 32 and 34 to 37<;-saw the first accused cutt.lng PaclddF.wami Pillai with aru>:al on his neck and on his head. P.Ws. 31, 32, 34, 35, 36 and 37 ·

rr.an towards the Caste Hindu Str.eet and ~ltimately entered into , the house of P.W. 47. Another. cr.owd of 50-60 per.sons armed with ar.uvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their. houses. Pn the same day at about ... 8. 00 p. m. P. w. 79, Inspector ~f ,Police, Keevalur. Police Station on getting information that some persons ·armed with lethal weapons were parading on the main r.oad beyond Th~vur. and towards south, after requisitioning a. vehkle (van) fr.om Nagapattinam Police Statiori sent P.w. 72, the Head Constable with t~ van for. road ~--:' patrolling between Ihevur. and Killukudi. P.W. 72 with some S.A. P. men went to Keezha Vanman.i. and after col.lecting the injured per.sons fr.om the house of P. w. 47 as well as collect-ing the injured P.Ws. 54 and 55 in the van came to the Keevalur. Police Station, where P.w. 79 (Inspector. of Police) recorded the statement of P.W. 54 who was lying ser.iously fojur.ed in the van and registered the same as Cr.ime No. 326 of 1968 of Ke~valur. Police Station. He thereafter. recorded . the statements of P.W. 55 in the van and r.ecorded the statements >:· of other P.Ws. 34 to 37 in the Police Station. Thereafter. P.W. · 79 at about 11.45 p.m. left for Keezha Venman1 and r.eached at about 12.00 m:fd night. He met P.W. 31 there. P.W. 79 then went to Nadu street alongwith P.W. 31 and fowld the dead body of Packir.iewami P1lla1 kept leaning against coconut tr.ee with multiple injuries. P. W. 79 recor.ded the statement of P. w. 31 and r.egister.ed the same as ·Cr.ime No. 328 of 1968.

The learned Sessions Judge after. duly weighing the evidences of P.Ws. found inter alia that ther.e was electric light and also moon light at the tiine of the occur.r.ence. P.Ws. 31, 32 and 34 to 37 witnessed the fatal 1njudes caus.ed by aruvals on the head and neck of Packiriswami Pillai by C.Opal -:\ (A-1). It was also held that the cr.ying. out by the deceased Packiriswami Pillai that Gopal (A-1) was cutting him was in the natur.e of Dying Declar.atlon and no motive could be ascribed for. the deceased to falsely implicate the accused· A-1 Gopal at that moment. Moreover, the injur.ies sustained by P.Ws. 34 to 36 with all pr.obabilities establish the pr.esence of these P. Ws. at close range and seei.ng the occurr.ence. Ther.e was also over.whelming evidence as to the pr.esence of A-1 1.n the cr.owd. (;he lear.ned Sessions Judge found accused No~ l ' gu:l.lty of offence under. s. 302 I.P.C. and sentenced him to impr.isonment for. life. He also found the accused No. l along-~ 'j with accused Nos. 2, 13, 17 and 18 guilty of mur.der. under. s. 148 I.P.C. and sentenced each of them to under.go r.igor.ous

imprisonment for. two years. Accused Nos. l and 2 were also '"""' held guilty of the offence under. s. 364 l.P.C. and sentenced each of them to under.go rigorous imprisonment for. 5 year.s. All these sentences wilt r.un concur.r.ently. Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e. ~ccused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were convicted undet. various offences and they were sentenced to suffer. r.igor.ous impr.ison-B ment for. various terms.

Against the aforesaid judgment and or.der. of conviction, . _... all the 8 accused per.sons failed Cdmi nal Appeal No. 23 of ~ 1971. The appeal was d:f.smissed and the convictJon of all the accused appellants for. var.ious of fences and sentences of imprisonment awarded against each of them were confirmed.

Mr.. Garg, learned counsel, appearing only on behalf of the accused appellant No. l has submitted befcr.e this Court that he will argue in this appeal only on behalf of the accused appellant No. l Gopal and as regards accused appellant No. 2 he further. submitted before us that the appellant No. 2 ~ Ramayyan who was convicted under. s. 364 l.P.C. and sentenced to under.go r.igor.ous imprisonment for. five years may "'e gr.anted exemption r.om under.going the r.emajning term of the sentence.

It has been firstly contended by Mr.. Garg, lear.ned coW18el, that the statement of P.W. 54 Packidswamy Por.aiyar. (Exhibit P-11) which was r.ecor.ded by P.W. 79 and registered in Cr.ime No. 326 of 1968 did not ment:fon about the attack on deceased Packi r.iswami. Pillai or. any lr.ukkai people. It has also been subm.itted that P.W. 72 (Head Constable) who collec-ted the injured per.son P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur. also dJ.d not tell has been, about therthe e_fore, attack submitted on the deceased Packir.iswami that the statements of Pillai. P.Ws. 34 It ,. ,......_,. .... to 37 wer;e ·recor.ded not ·at the Police Station immediately after. r.ecor.ding statement of P.w. 54 i .e. Exhibit P-1 1. It has also been sub~itted that the accused Gopal (A-1) who i s well known t o the 1'lir.asdars has been falsely implicated at the jnst ance of P.W. 1, who as stated by P.W. 72 came to the place wher.e P.W. 72 was br] nging the jnjur.ed per.sons in the van i.e. P.Ws. 54, 55 and 34 to 37 for. br.i ng them to the Police Station. Th.ls submissi on has no l egs to stand upon. It has been held by both the courts below that the evidences of P.Ws. 'y >' 34 to 3 7 were r.ecor.ded by the Inspector., Keevalur. PoU ce "-. · Station (P.W. 79) as soon as they were hr.ought to the Poli ce

Station at about 10. 30 a.m. All these witnesses have clearly stated in their. depositions that they witnessed A-1 inflict cutting inj ur.ies on the neck and head of Pacld r.fawami Pillal. after. lifting him alongwith other. accused and car.r.ying him to the east of Har.ijan Str.eet. The court of appeal below has dghtly held that P.W. 54 was only concer.ned wl.th the incl.dent that occured befor.e his house and as such ·.1 n Exhibit P-11 ther.e was only the r.efer.ence to the said incident. It was also held that P.W. 79 in his deposition r.efuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him. Mor.eover. all these P.Ws. 34 to 37 suffer.r.ed sever.al injuries bel.ng chased by the crowd wh.ile running towards the house of P.W. 47. Ther.efore evidences of all these eye wit-nesses as well as of P.W. 31 wer.e believed by both the courts below that A-1 .caused fatal cut injuries on the per.son of deceased Packir.iswaml Pillai. P.W. 65 Dr. Madan Gopal, Assistant Surgeon, Government Hospital, Nagapatt.inam, who conducted post-mor.tem also stated in h.is deposition that out of the ·11 injuries caused on the per.son of deceased Pacld.r.i-swaml Pillai, the injuries Nos. 1 and 2 wh.ich could have been caused by single cut was sufficl ent .1 n the or.di nar.y cour.se of nature to cause death. The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured could have shouted out. There ls, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated, Moreover., P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injureis caused by A-1 on deceased .Pacldr.iswami Pilla.1. He also stated that he heard P.Ws. 34 to 37 utter.ing Packir.iswami, Packir.iswaml. It was rightly held by both the courts below that P.W. 72 was deaf and could not hear. what they told him. The non- mentioning of attack on Packir.iswami. Pillai ,by P.W. 54 in his statement does not in any way lead to the inftorence that the statements of P.Ws. 34 to 37 were r.ecor.ded after r.ecording of the statement of P.W. 31. It has been tried to be submitted In this connec-tion that the statements of these P.Ws. wer.e r.ecorded in plain-sheet of paper instead of recor.ding Jn diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were not r.ecor.ded immediately after the recording of the statement of P.W. 54. This submission was also set at naught by the courts below by holding that P.W. 79 recorded the stat-ments of P.Ws .• 34 to 37 in the Police Station after recor.ding of the statements of P.Ws. 54 and 55. The mere recording of

statements in plain-sheet instead of Jn dl.ary form in these circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P-11),

It was submitted that had P.Ws •. 31, 32 and 34 to 37 known about the. attack on deceased Packi riswam.i Pl llai and his being carried away, it was unlikely that they would not have informed P.W. 1, who came there as stated by P,W, 72 and P.W. l in that case would have taken further actJon in the matter with the help of P.W. 72, Th.is submission has also no merit. lt has been held by the court of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated .in their evidence that they did not see P.W. l at all. The evidence of P.W, l was that he did not go to Caste Hindu Street at that time. ln view of these evidences, the court of appeal below held that the evidence of P,W, 72 to the effect that P.W. l came near the house of P,W, 47 could not be accepted. lt was also pplnted out by the court of appeal below that P.W. 72 has not spoken about presence of P,W, l at that tl.me el ther i.n Crime No. 326 or Jn Crime No. 328 of 1%8, lt was only during the lnvestlgatlon in Cr.ime No. 327 of 1968 namely the connected arson case P,w,' 72 made the above statement. Therefore, this submission ls not sustain- , able.

lt was submitted by Mr, Garg that had P,Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur PoUce Station about the attack on Pack!rlsw~ PHlaJ, then that •tatement would have been recorded separate-ly and separate crime number would have been given to it as was done Jn recording statement of P,W, 31 and registering it in Crime No. 328. of 1968. lt was, therefore, suggested that P, Ws. 34 to 37 were examined by P.W. 79 only after recordi.ng statement of P.W. 31. Th.is submission was also urged before the Court of appeal below and It was held that it was not improbable that because at the time of the recordl.ng of state-ment of P.Ws. 34 to 37, P. w. 79 was not aware of the death of Packl.rlswaml .Pillai, so he did not consider it g'fave crime and did not register it separately as spoken to by him, P.W. 79 furhter stated in his evidence that both the occurren-ces namely attack on P.Ws. 54 and 55 and Packl.r!swaml. Pillai formed part of. one and the same transaction. P.W. 79 further admitted that he ought not to have registered separate case in Crime No·, 328 of 1968 on the statement of P,W, 31, It was

rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registeribg separate crime number on the basis of' the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examlned only after examination of P.W. 31; It was rightly held by the Court of appeal below that these frregularSties collllllitted by P.W. 79 in not recording the stat,ement of P.Ws. 34 to 37 in Case D:lary Form and. regJ ster..i ng the separ.ate cr.1:me number. on the state-ment of P.W. 31 could not mHltate against the prosecution case. No motive has been suggested against P.W. 79.

It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A-1 and A-2 this. Court should remit the remain.Ing period of their sentence. W11 are unsble to accept this submissi.on advanced by Mr. Garg. Mention may be made in th! s connection to the observations of this Court in State 'ot Maharashtra v. Mayer Bans George, A.I.R. [1965] s.c. 722, which are as follows:-

. "It .is the settled rule of the Supreme Court that it would not Interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of prindple."

As we have already stated herein before that the accused 1 and 2 have been convicted by the courts below on the finding that the offences charged aga.i nst them have been proved by the eye witnesses beyond any reasonable doubt. There was no illegality nor any question of princi.ple involved Jn the matter of making order sentenc:i ng them to .imprisonment as provided in ss. 302 and 364 of the Indian Penal Code. There-fore, we are not inclj ned to interfere with the senterlces passed by the Courts below •

It is pertinent to mention here the observations made by this Court in Pritam Si,.gh v. The State, A.I.R. [1950] s.c. 169, which are as follows:-·

"It will not grant special leave to .appeal under Article 136 (1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and ·the case in questi.on presents features of- sufficient gravity to war.rant review of the decision appealed against and that only

[19B6J i s.c.a.

those points can be urged at the final hearing of the appeal which are fit to be urged at the prelim-: Jnary stage when leave is asked for. It is well established that this court does not by special leave convert .itself into court to review evidence of third time, Where, however, the court below fails in apprehending the 1 true effect of material change Jn the versions given by the witnesses Jnnnedlately after the occurrence and the narrative at the td al wl th respect to the nature and character of the offence, it seems to us that Jn such si tuatlon lt would not be right for this court to affJ rm such decision when it occasions faj lur.e of justice."

This decision has been relied upon and followed l n subsequent decisi.on of this Court in Sadlll Singh llarnam Singh v. State of Pepsu, A.l.R. (1954] S.C, 271,

In the premise aforesaid, we do not find any infirmity for less any illegall ty or failure of justice which would impel us to interfere with the order of conviction and sentence concurrently arrived at by both the courts below. We, therefore, dismiss the appeal and confirm the convic-tlon and sentences passed on accused Nos. A-1 and A-2 as well as on other appellants.