BHANWAR SINGH, J. - (1.) This is a State Appeal filed against the verdict of acquittal dated 23-3-1978 passed by Sri S.N. Saxena, the then III Additional District and Sessions Judge, Barabanki, thereby acquitting the accused respondents of the charges under Ss. 147, 148, 302, 307 and 149 IPC.
(2.) The facts giving rise to this appeal may be recapitulated as below :- Head Constable Sheo Kumar Lal posted at P.S. Tikat Nagar, District Barabanki, received an information on 16-3-1972 to the effect that a strong group of more than a dozen of villagers, some of them being armed with lethal weapons, had formed an unlawful assembly near the house of Sharda (deceased) and Govind Prasad, both brothers living in the same house, in village Tasipur. The purpose of the villagers having formed the said unlawful assembly was to eliminate both the above named brothers and it was with that motive in mind that their house had been surrounded by members of the unlawful assembly. Sheo Kumar Lal, on receipt of this information through village chaukidar Hardwar, set out for village Tasipur and alongwith him were several members of the police force, namely, constables Bindheshwari Singh, Ram Lochan and Munnu Singh. Two more constables, namely, Mohammad Nasim and Mehmood Khan joined the police party headed by Head Constable Sheo Kumar Lal on way to the village. Sharda also met them on their way and since he was the target of the unlawful assembly, he preferred to walk behind the police personnel. It was at about 3-30 p.m. when the police party arrived in the village. Sheo Kumar Lal noticed that the information given by the village Chaukidar was accurate. He found that about sixteen or seventeen persons had assembled in a field near the house of Jamuna. All the miscreants were armed with dangerous weapons like spear. kanta, bows and arrows, guns and country-made pistols. Sheo Kumar Lal conversed with the members of the assembly and enquired about the purpose for which they had assembled there. All of them felt enraged and asked the informant to get awayas they were determined to eliminate Govind and his brother Sharda. The informant made his sincere efforts to persuade them to desist from taking the law into their hands but it all fell on their deaf ears. As the miscreants were in ferocious mood, the police personnel retreated a while and resultantly their view with that position was little obstructed on account of there being a ditch and pig-enclosure of Hussaini Pasi. A constable accompanied with Sharda Prasad proceeded towards the latter's house but they were intercepted by the accused person who immediately attacked Sharda Prasad with arrows and hand-grenades. When the police party tried to intervene, they were also attacked by the members of the unlawful assembly with the help of country-made pistols, hand grenades and arrows. By this time, Sharda Prasad had been killed in the presence of the complainant and other police constables present there. Sensing thus a real threat to the life of the police personnel, Head Constable Sheo Kumar Lal asked his fellow constables to take position behind a wall. One of the accused, namely, Maya Ram hurled hand grenades towards the police party. Provoked by this dare devil act, one of the constables opened fire, as a result of which Maya Ram died on the spot. In the meantime, the other police personnel also fired some shots to scare away the miscreants, particularly Jamuna Prasad, Gaya Prasad and Shiv Kumar who had attacked them with country made pistols, hand grenades and arrows. some of the accused made a futile endeavour to take away the dead body of Maya Ram. This occurrence was witnessed by several villagers including Keshav Ram, Ram Sumiran, Hardwar and many others. A witness, namely, Ram Naresh of Jewal was also present at the scene of occurrence. Soon after the occurrence was over, members of the police force came out from their hide out and saw the dead bodies of Maya Ram and Sharda Prasad lying there. Head Constable Sheo Kumar Lal then enquired from the villagers particularly the village Chaukidar Hardwar, the names of the miscreants. It was on the basis of the identity disclosed by the witnesses that the Head Constable drafted the first information report,Ext. Ka. 5 and narrated the entire episode and got it sent through constable Mohammad Nasim. The head Constable also sent for the additional police force so as to avert any further incident. The Station officer of Tikait Nagar police station arrived at the village at 7.30 p.m. and he started investigation. Jamuna Prasad in the meantime, succumbed to his injuries which he had suffered during the time of occurrence. the Investigating Officer took all the three dead bodies in his custody, got their inquest reports prepared, interrogated the witness and tried to secure the accused persons. A few incriminating articles like diary, Danda, lathis, a country-made pistol, a Tarkash containing thirteen arrows, bows, one blade of Ballam, pieces of hand grenades were collected from the site of occurrence. The Investigating Officer prepared their recovery memos and packed and sealed them in separate bundles. Some of the accused surrendered in the Court while others were arrested by the Investigating Officer. After completing all the formalities of the investigation, the Investigating Officer submitted charge-sheet against the accused respondents namely Gaya Prasad, Shiv Kumar, Binda Prasad, Ram Adhar, Jagannath, Shiv Nath, Ram Kumar, Satya Narain, Bharosey, Harnam, Awadhesh, Jagdish Ram Jus and Gokaran.
(3.) All the accused at trial pleaded not guilty and their defence version was that about a year before this occurrence, Shiv Kumar, Ram Kumar, Ram Jus, Satya Narain and Gaya Prasad were prosecuted under S. 307 IPC on the charge of having made an attempt on the life of Govind, the brother of the deceased Sharda Prasad and it was on account of this enmity and ill will between the aforesaid person on one side and Govind and his brother Sharda Prasad on the other that they had been falsely prosecuted alongwith others in this case. Accused Gaya Prasad, however, stated that on the date of occurrence, he heard some hue and cry, attracted by which he went near the site of occurrence and found that Head Constable Sheo Kumar Lal and Constable Mehmood Khan were firing shots from their rifles upon Jamuna Prasad and Maya Ram. He immediately rushed back to protect himself from any injury in the said brawl. He added further that constable Mehmood Khan had a glance of him and, therefore, he had exhorted his fellow constables to kill him also as he (Gaya Prasad) had once assaulted a police constable, namely, Toofani. He however, made good his escape.;