# SUBHASH & ANOTHER v. STATE OF U.P. May .6. 1976

- **Citation:** [1976] Supp. 1 S.C.R. 587
- **Court:** Supreme Court of India
- **Decided:** 1976
- **Case number:** Criminal Appeal No. 420 of 1974
- **Bench:** Y. V. Chandrachl'D, R. S. Sarkaria, P. N. Sil!NGHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subhash-another-v-state-of-u-p-may-6-1976-7187
- **Pages:** 8

## Headnote

CoJe of Crin1itl[;./ Procedure, S. 314-Referen€e far c£>nfirmatlon of deatli
sentence, wheth~r High Court obliged to examine entire evidence independently.
Ram Sanehi received tv.ro gun-shot v;ounds on his chest, and died' within ten
minutes. Tw·o of hi> children claimed to have witnessed the occurrence .. The
dead body v.as subfected to post-mortem only after about 24 hours had elapsed.
The same evenine. appellant Subhash surrendered, and appellant Sbyam Narain
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\\.·as arrested, though for another offence altogether. The Sessions Court conC
victed ttem under s. 302 I.P.C. and sentenced Subhash to death and Shyam
Narain to imprisonment for life. The accused moved the High Court in appeal,
\vhile the Se:.si.ons Court referred the matter to it under s. 374, for confirmation
of the de;;.tlrsentence.
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The question before this Court was, \\'hetb~r· i~· iiie case of such references.
the High Court was obliged to examine the entire evidence. independe.ntly.
· AIJowing the appeal, the Court,
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HELD : On a reference for confirmation of the senrence of death, the High
Court is under an obligation to proreed in accordance with the provisions
of sections 375 and 376 of the Criminal Procedure Code. The High Court must
not only see \\ heth~r the other order passed by the Sessions Court is correct
but it is under an obligation to examine the entire evidence for itself, apart
from and independently of the Sessions Court's appraisal and assessment of
that evi<lence.
f589A-BJ
J1llnmGn and Ors. v. The State ·of Punjab AIR 1957 S.C. 460;. Ram Shanker
Singh and Ors. v. State of JVest Bengal [1962] Supp. 1 SCR 49 &t 59 and
B!tupendra Shu:f1 v. Tf1e State of Punjab [1968] 3 SCR 404. folIO\vcd.

## Text

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587
SUBHASH & ANOTHER
v.
STATE OF U.P.
May .6. 1976
[Y. V. CHANDRACHL'D, R. S. SARKARIA AND P. N. Sil!NGHAL, JJ.]
CoJe of Crin1itl[;./ Procedure, S. 314-Referen€e far c£>nfirmatlon of deatli
sentence, wheth~r High Court obliged to examine entire evidence independently.
Ram Sanehi received tv.ro gun-shot v;ounds on his chest, and died' within ten
minutes. Tw·o of hi> children claimed to have witnessed the occurrence .. The
dead body v.as subfected to post-mortem only after about 24 hours had elapsed.
The same evenine. appellant Subhash surrendered, and appellant Sbyam Narain
B
\\.·as arrested, though for another offence altogether. The Sessions Court conC
victed ttem under s. 302 I.P.C. and sentenced Subhash to death and Shyam
Narain to imprisonment for life. The accused moved the High Court in appeal,
\vhile the Se:.si.ons Court referred the matter to it under s. 374, for confirmation
of the de;;.tlrsentence.
;.
The question before this Court was, \\'hetb~r· i~· iiie case of such references.
the High Court was obliged to examine the entire evidence. independe.ntly.
· AIJowing the appeal, the Court,
U>
HELD : On a reference for confirmation of the senrence of death, the High
Court is under an obligation to proreed in accordance with the provisions
of sections 375 and 376 of the Criminal Procedure Code. The High Court must
not only see \\ heth~r the other order passed by the Sessions Court is correct
but it is under an obligation to examine the entire evidence for itself, apart
from and independently of the Sessions Court's appraisal and assessment of
that evi<lence.
f589A-BJ
J1llnmGn and Ors. v. The State ·of Punjab AIR 1957 S.C. 460;. Ram Shanker
Singh and Ors. v. State of JVest Bengal [1962] Supp. 1 SCR 49 &t 59 and
B!tupendra Shu:f1 v. Tf1e State of Punjab [1968] 3 SCR 404. folIO\vcd.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 420
of 1974.
Appeal by Special Leave from the Judgment and Order dated
27-11-74 of the Allahabad High Court in Criminal Appeal No. 2646(
73 and Referred No. 95 /73.
Frank Anthony, E. C. Agarwala and A. T. M. Sampatft; for· the
Appdlams.
0. P. Rana; for the Respondent.
The J udgmcnt of the Court was delivered by
CHAKDRACHUD, J. The appellants, Subhash and Shyam Narairr,
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were convicted by the learned Civil and Sessions Judge, Farrukhabad
under section 302 of the Penal Code on the charge that at abouh
9 a.m. on June 9, 1972 they committed the murder of one Ram Sanehi~
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Subhash was sentenced to death and Shyam ~arain to imprisonment~ HI
for life.
The judgment of the trial court having been confirmed .i.n.
appeal by the High Court of. Allahabad, the two accused have filed this
appeal by special leave of this Court. ·
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The case of the prosecution is briefly as follows : Oa the morning
of June 9, 1972 the deceased Ram Sanehi had gone to his field along
with his son Bal Kishorc and his daughter Kusuma Devi for eatin!J
Kharbuzas.
While they were returning from the field al about 9 a.m.
the appellants, who were lying in wait near a culvert, suddenly accosted
Ram Sanehi.
The appellant Subhash pointed the barrel of his gun
towards the chest of Ram Sanehi and said that since he, Ram Sanehi,
was a witness against him in a complaint filed by Pooran Lal and
since he was also doing Pairvi on behalf of Pooran Lal he would not
be allowed to remain alive.
The appellant Shyam Narain was armed
with a lathi.
Bal Kishore and Kusuma Devi pleaded .vith the appellants to spare their father but Sh yam Narain asked Sub hash not to
delay the matter and finish Ram Sanehi quickly.
Subhash thereupon
fired three shots from his double-barrelled gun, the last of which misfired.
Ram Sanehi fell down, whereupon the appellants dragged him
by his legs over a distance of 6 or 7 paces.
Bal Kishore and Kusuma
Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal, Mangali Prasad and Jhabbo Singh Thakur reached the place of occurrence
and challenged the appellants.
Before running away, the
appellant
Subhash told his companion Shyam Narain that he on his own part was
going to surrender before a court and that Shyam Narain should make
his own arrangements.
Ram Sanehi died within about
10
minutes
after receiving the injuries.
Bal Kishore first went to his house which is at about a distailce of
120 yards from the scene of offence.
At about 12 O'clock at noon he
went to the Kamalganj police station and lodged his First Information
Report (Ex. Ka-3). S.T. Vishwanath Sharma who was posted asa 2nd
Officer at the police station recorded Bal Kishore's complaint, went to
the scene of occurrence, prepared the inquest report and handed over
the dead body for being sent for post-mortem examination to the District Hospital at Farrukhabad which is about 10 miles away from the
village of Kandharpur where the incident took place.
S.T.
Sharma
took samples of earth from the place of occurrence and seized a misfired cartridge which was lying concealed in the folds of the deceased's
Dhoti.
The Fard in that behalf is Ex. Ka-10 and
the site-phn is
Ex. Ka-11.
The appellant Subhash surrendered before the Additional
District
Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the \'ery day.
The appellant Shyam Narain was arrested at about 2-40 p.m. on the
same day under section 122 of the Railway Act for crossing the railway lines at Fatehgarh.
The appellants denied the charge that they had committed the
murder of Ram Sanehi and stated that they were involved in the caee
due to enmity.
This defence has been rejected both by the Sessions
Court and the High C~rt.
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Before referring to the evidence in the case it has to be mentioned
that the High Court had before it not only the appeal filed
by the
accused but also a reference made by the Sessions Court for confirma-.
tion of the capital sentence under section 374 of the Code of Criminal
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SUBHASH v. u. P. STATE (Chandrachud, J.)
589
Procedure.
Time and again this Court has pointed out that on a
reference for confirmation of the sentence of death, the High Court is
under an obligation to proceed in accordance with the provisions· of
sections 375 and 376 of the Criminal Procedure Code.
Under these
sections the High Court must not only see whether the order passed by
the Sessions Court is correct but it is under an obligation to examine
!he entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evidence.
From the
long line of decisions which have taken this view it wpnld be enough to
refer to the decisions in Jumman and ·Ors. v. The State of Punjab('),
Ram Shunker Singh & Ors. v. State of West Bengal(') and Bhupendra
Singh v. The State of Punjab( 3).
The High Court has failed to show due regard to lb.is well-established pooition in law. It did not n.ndertake a full and independent examination of the· evidence led in the case and it mainly contented itself
with finding out whether the Sessions Court had ill' any manner erred
in reaching the conclusion that the charge of murder levelled against
tlte appellants was established beyond a reasonable doubt.
The High
Court is right in saying that the main question in the case was whether
Bal Kishore and Kusuma Devi who were examined as eye-witnesses
were truthful witnesses.
But then it did not subject their evidence to
any minute scrutiny.
Impressed overbearingly by the
circumstance
that the Sessions Court "had the opportunity of observing the demeanour" of the witnesses, the High Court apparenty thought that such an
opportunity gave to the Sessions Court's· judgment a mystical weight
and authority, even though the learned Sessions Judge had not, in his
judgment or while recording the- evidence, made any special reference
to the demeanour of the witnesses.
The High Court accepted the
evidence of Ram Sanehi's children by observing that there was no material contradiction in their evidence and that certain statements in the
F .I.R. afforded a guarantee that the two witnesses were present when
their father was done to death.
We will now proceed to show how
several significant circumstances either escaped the attention of the
High Court or were not given their due and rightful importance.
First as to the manner in which S.I. Sharma conducted investigation into the case. The offence took place at about 9 a.m. on June ''
and though the District Hospital at Farrul<:hab'd was iu't 10 miles
away, the dead body was not received at the hospital for nearly 24
hours after the incident had taken place.
The excuse offered by the
prosecution that cartman was not willing to tal<:e . the body at night is
utterly flimsy .because tbe Investigating Officer could have easily made
some alternat~ a~diigemen~}or despatfhlng the dead bo\fy'_f9r postmortem exam1nat10n .e:xped1t10usly. With the dead. body ly;1ng ~t the
scene of offence for ne&rly 12 hours and. thereafter at the police station
for another 8 or 9 hours, it was.easy yn011gh Jor the witnesses to moul.d
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(I) A. I. R. 1957 $. 0. '46(). '
(2) [1962] Supp. I S. C;'il.''49 at 59.
(3) [19681 j S. 'C. R. 404.
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SUPREME COURT REPORTS
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their statements so as to accord with the nature oi injuries.
The
Investigating O!licer did not make any note at all in the General Diary
as to which witnesses were examined by him on the date of the occurrence which was obligatory upon hiiμ to do under paragraph 44 of the
U.P. Police Act.
The time when the investigation was
connnenced
and the time when it was concluded are not mentioned in the case
diary.
The time when the Investigating Officer reached the village
and the time when he returned to the police station are also not noted
in the case diary.
SJ. Sharma stated in his evidence that several
important facts concerning the investigation were being stated by him
in his evidence from memory.
He reached the scene of offence at
about 2-30 p.m. but it was not until abouf 6 p.m. that he inspected the
site.
The dead body was not removed from the scene of offence till
about 9 p.m. and even that is open to grave doubt because the Investigating Officer has admitted in his evidence that he was unable to
say as to when the dead body was taken way from the spot and
whether it was taken directly to the hospital or was detained somewhere
on the way.
He was unable to say whether it was right or wrong
that the dead body remained in the village till
about 4
O'clock
on the morning of the 10th.
Forty or fifty persons had gathered at the
scene of offence when the Investigating Officer arrived but the record
of the case does not show that the statement of any of those persons
was ever recorded.
In fact even the statement of Kusuma Devi was
recorded late at night for which the reason is stated to be that her elder
sister Pushpa Devi died of shock on the evening of the 9th after hearing of her father's murder. It may be that Pushpa Devi died on the
9th, but apart from the cause of her death, the statement of Kusuma
Devi need not have been held up so long.
We are doubtful ii the
Investigating Officer at all knew on the 9th that Pushpa Devi had died.
He has admitted that his knowledge in that behalf was derived · from
hearsay reports.
The appellant Subhash had surrendered before the
Additional District Magistrate, Farrukhabad on the afternoon of the
9th itself while the other appellant Shyam Narain was arrested at
Fatehgarh at about 2-40 p.m. The Investigating Officer did not even
know of these significant developments, though they had taken place
just a few miles away from the scene of inv~tigation. He says that he
learnt of the surrender and the arrest of the appellants on the evening
of the 12th. Mangali Prasad has been examined by the prosecut;on as
an eye-witness and his name is mentioned in the F.I.R. as one of the
four persons who arrived at the scene of offence even befoce the
appellants had run away. His statement was recorded 11 days later on
June 20.
The F.I.R. mentions expressly that the appellants caught
hold of the legs of the deceased and started dragging him. The Investigating Officer has not stated in the Panchnama of the scene of offence
whether the ground was soft or hard or sandy which had great relevance
on the allegation that the deceased was dragged over a certain distance.
Finally, it is surprising that the Investigating Officer did not think it
worthwhile to pay a visit to the field where the deceased is alleged to
have gone with his children for eating Kharbuzas.
Indeed, he stated
that he was not in a position to say if there were Kharbuzas at all in
the field, wlten the occurrence took place.
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SUBHASH v. u. P. STATE (Chandrachud, J.)
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The High Court has condone<! these lapses on the patt of the Inves- ·A
tigating Officer with the observati~n th~t he "appears to .have been
inexperienced and somewhat negligent . . The Invest1gatmg
Offic~r
has stated in bis evidence that he had put m 7 years of service. It 1s
difficult to understand on what basis the High Court attribU(ed the
Japses on his part to me~e iuexperience.
We will. p~esent~y i~dicate
the significance of the vanous lapses and loopholes m mvesligat1on but
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to say, as the High Court has done, that the Investigating Officer was
"somewhat negligent" seems to us in the circumstances a grave euphemism.
We will now proceed to deal with the various circumstances which,
in our opinion, render it nnsafe to accept the prosecution case.
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Dr. S. C. Pandiya who performed the post-mortem examination has
described in his evidence the injuries received by Ripn Sanehi. In all
he found 7 injuries on the dead body, out of which injuries l, 3 and 7,
injuries 2 and 4, and injuries 5 and 6 are interconnected.
Injury No.
1 is described as a "shot wound" with its entry abo_ve the left nipple.
Injury No. 3 is described as multiple rounded abrasions on the Mt side
of the chest.
Injury No. 7 is the wound of exit on the right scapular
region, corresponding to injury No. 1.
Injury No. 2 consists ·of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple. Injury
No. 5 is a gun-shot wound of entry on the back of the left forearm
while injury No. 6 is the corresponding wound of exit near the ulnar
aspect of the left forearm.
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The evidence of Dr. Pandiya and the description of the injuries
given by him in the post-mortem report tend to show that two different
kinds of firearms were used by the assailants of Ram Sanehi.
Injury
No. 1 was caused by a bullet and that is clear not only from the des-
<:ription of the injury but from what Dr. Pandiya has stated in his evidence.
He says : "The bullet, which had entered through injury No. 1
went out straight after emerging from injury No. 7". Injuries' N'os. 2
and 5 were caused by pellets.
This shows that whereas injury No. 1
was caused by a firearm in the nature of a rifle, injuries 2 and S were
caused by an ordinary gun.
The medical evidence thus falsifies the
eye-witnesses' account according to which, the appellant Subhash-alone
was armed with a double-barrelled gun, the other appellant Shyam
Narain being armed with a lathi.
The objective inference arising from
the nature of injuries received by the deceased has a significant impact
on the case of the prosecution, which has been overlooked by beth the
Sessions Court and the High Court.
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While we are on the medical evidence it would be appropriate to
mention that there was no tatooing or charring on any of the firearm
injuries which, accordillg to the doctor, shows that the firing was done
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from a distance of more th an 4 feet.
In the First Information Report
Bal Kishore has stated that as soon as he, his father and sister, reached
the culvert, Subhash "touching the chest" of Ram Sanehi "with the
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SUPREME COURT REPORTS
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barrel of his gun'' said that he shall not leave him alive; Shyam Narain
thereupon exhorted Subhash not to delay and fire immediately; Subhash
then tired three shots in quick succession, one of which misfired.
The
trend of the F.I.R. is that Subhash fired the first two shots at Ram
Sanehi from a point blank range, in which event indisputably, there
would have been tatoomg and charring around· the injuries.
Bal
Kishore has attempted to offer an explanation that what he meant to
say in bis compaint was that Subhash trained his gun "towards" Ram
Sanehi's chest and not '"on" his chest.
This explanation is an afterthought and in the circumstances difficult to accept.
Thus in another
imI_Jortant respect, the medical evidence falsifies the case ~the prosecution.
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There is anpther asp~ct of the medical evidence which, though, not
as important as the two aspects mentioned above, may also be referred
to.
The case of the prosecution is that RaqSanebi had gone to his
Kharbuza field with his son and daughter for eating Kharouzas. There
is evidence that they did eat Kharbuzas and almost immediately thereafter they started back for home.
Within less than 5 minutes, Ram
Sanehi met with his death near the culvert.
The post-mortem report
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shows that Ram Sanchi's stomach was empty which means that the
evidence that he had eaten Kha.rbuzas just a little time before his death
is untrue.
Bal Kishore tried to wriggle out of this situati9.fi by saying
that Ram Sanehi had eaten just a small slice cf Kharbuza.
But even
there, Dr. Pandiya has stated that if the entire ~lice of Kharbuza was
eaten by Ram Sanchi, its remains would be found in the stomach provided there was no vomiting after the gun-shot injuries. Since Ram
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Sanehi had not vomited, his large intestines could not have been f9und
to be empty if the story of his children was true.
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This last circumstance may at first sight seem trivial but its importance consists in the fact that the visit of Ram Sanehi, along with his
children, to the Kharbuza field for the purpo~e of eating Kharbuzas is
the very genesis of the incident which happened on June 9,
1972.
Coupled with the circum,tance that the Investigating Officer did not
even pay a visit to the Kharbuza field, leave alone making a PanchG
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nama thereof, the conclusion is irresistible that the story that the children had accompanied their father to the Kharbuza field lacks a factual basis.
The other circumstances which render the proscmtion case suspect
are these : (1) Ram Sane hi is aljeged to have bee!) dragged over 6 or
. 7 ]'.laces by the appellants.but not even an abrasion was found on his
back or stomach which could be attributed to, dragging. (2) Thirty
or forty persons are alleged to have collected at the scene of occurrence
but Bal Kishore :was not able to mention the name of even one of
them and it is common groimd t)1at the Investigating. Officer did not
r~?rd tl)e ~tate~ep.t .of anri of them.
.( 3) Jh.:il;lboo Sittl,'h, Shya~· ,Lal,
Bn_i,!Bl111shan anil M;<μigali Prasad reached the scyne of ofience even
before .(h¢ ,appelfants ,had. fled away but none front amongst the first
thre.e was· examined b:,< the prosecution.
Mangall Pr? fad was examin--
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SUBHASH v. u. P. STATE (Chandrachud, I.)
593
ed as an eye-witness but he has been concurrently disbelieved by the
Sessions Court and the High Court.
( 4) Though the motive of the
offence is alleged to be that in a complaint filed by Pooran Lal against
the appellant Subhash, the deceased Ram Sanehi was cited as a witness, Mangali Prasad's evidence shows that immediately after
the
firing, Bal Kishore told him that Ram Sanehi was murdered because
of the disputes concerning the election to the Pradhanki. What Bal
Kishore told Mangali Prasad immediately aft~r the incident seems
m01e probable ·because, one Virendrapal haJ contested that election
and the appellant Subhash had defeated him.
When Bal Kishore went
to lodge his F.I.R. at the police station he was ac_companied by Virendrapal, though an attempt was made to show that Virendrapat
was only standing outside the police station and had met -Bal
Kishore accidently. (5) The story of Bal Kishore that after the appellant Snbhash fired 2 shots he re-loaded his gun but the re-loaded
cartridge misured makes hardly any sense. Subhash was armed with a
double barrelled gun and having fired 2 fatal shots from a close range
at his target, it is unlikely that he would re-load the gun and that too
with only one cartridge.
And if that cartridge misfired, it is impossible to understand how it could be found concealed in the folds of Ram
Sanehi's dhoti.
There is only one other aspect of the matter which remains to be
considered and since the High Court has placed great reliance thereon,
it is necessary to deal with it.
The F.I.R. which lodged at about
12 O' clock at noon on the 9th itself mentions that after Ram Sanehi
was murdered, the appellant Subhash
told his companion
Shyam
Narain that he himself was going to surrender before a court and that
Shyam Narain should make his own arrangement. In fact, Subhash
did surrender in the court of the Additional District Magistrate, Farrukhabad, at about 4 p.m. on the 9th..
What the High Court has overh1oked is that Subhash did not surrender in connection with the murder
of Ram Sanehi but. he surrendered along with the 13 or 14 other
accused against whom Pooran Lal had filed a complaint. In so far
as Shyam Narain is concerned, the lligh Court is wrong in saying that
he managed somehow to get himself arrested.
The evidence of Constable Virendra Singh shows that Shyam Narain was arrested because
he was crossing the railway lines and if he was not caught, he would
have been run over by the two trains coming from Kanpur and Farrukhabad.
This was hardly any sensible way of making an "arrangement" for himself, as directed by Subhash. It is therefore not as if
the statement attributed to Subhash in the F.I.R. is corroborated by
subsequent events so as to afford a guarantee to Bal Kishore's presence at the culvert.
We are conscious that the Sessions Court and tbe High Court have
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both held that the appellants committed the murder of Ram Sanehi
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but the weight of the circumstances which we have discusse4 above is
so preponderating that even .the concurrent finding cannot be allowed
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SUPREME COURT REPORTS
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to stand.
In any event, it. seems to us impossible to hold that the
prosecution has established its case beyond a reasonable doubt.
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We therefore allow this appeal, set aside the order of conviction
and sentence recorded by the High Court and the Sessions Court and
direct that the appellants shall be set at liberty.
M.R.
Appe-al allowed.
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