U.K.VERMA,J. - (1.) THIS government appeal is against the acquittal of Narendra Kumar, Darogha, Vishambhar, Aswani Kumar, Iqbal Bahadur, Rajeshwar and Sokha of the charges under Sections 302 read with Section 149, I.P.C. and of yishambhar, Narendra Kumar, Ashwani Kumar, Rajeshwar Da'rogha and Iqbal under Section 148, I.P.C. and of Sokha under Section 147, I.P.C.
(2.) THE prosecution case is that in the year 1972, the complainant Satya Narain had lodged report against Visham­bhar respondent and his cousion Jhullar for committing theft. He had also litiga­tion with Narendra Kumar respondent wherein he was successful. The respon­dents for the above reason had become inimical to the complainant. In the even­ing preceding the incident, the respondents had heated exchange of words with Lallan deceased when he expressed resentment about the cattle of Vishambhar respondent having strayed inside his field. In the night between 30.11.74 and 1.12.74 when Lallan, Girish Kumar and Ram Suchit deceased were sleeping in the room by the side of the tube-well which Lallan used to operate the respondents Visham­bhar with a gun, Narendra Kumar, Ashwani Kumar and Rajeshwar with Gandasa, Darogha and Iqbal Bahadur with spear and Sokha with lathi made murderous assault on them. The complainant Satya Narain (P.W. 1) who was irrigating his field two hundred fifty yards away arrived with his brother Rang Nath and his nephew Ramji and also Golai (P.W.3) flashing their torches, on hearing the loud squeaky sound made by the deceased before they died. The others who arrived were Dhanpat (P.W. 2) and his brother Ram Dayal along with Ganesh and Vipat who too had been irrigating their field in the vicinity. On being challenged, the respondent Vishambhar fired from his gun towards the witnesses but they had a providential escape. They succeeded in over powering and snatching his gun but the respondents including Visharnbha managed to run away. The factum of the murder of Lallan, Girish Kumar and Ram Suchit in the room by the side of the tube-well of Satya Narain which had been satis­factorily proved by the prosecution was not seriously challenged by the respondents. They, however, denied their complicity in the crime. The police according to them obtained the gun of Vishambhar from him and cooked the false case that it had been seized from him while he was trying to flee from the scene of the incident. The respondents have set up this case in defence that Lallan de­ceased had illicit relationship with a girl named Rama Devi who had another paramour named Janardan Lallan had been done to death along with Ram Suchit and Girish in the earlier part of the night between 30.11.74 and 1.12.74 because of his loose morals.
(3.) WE have gone through the evidence on record and the elaborate judgment of Sri B.N.S. Srivastava, the learned II Additional Sessions Judge, Allahabad. He has discussed thoroughly as to how he found not only the motive alleged for the crime to be inadequate but how he was of the view that none of the wit­nesses examined by the prosecution could have been present near the scene of occurrence to be able to see the assail­ants. He did not rely upon the prosecution story that the gun of Vishambhar had been seized from him. The circumstances of the case he has discussed, belied the prosecution version in this regard. He further has pointed that the oral evidence adduced was in conflict with medical evidence for he was of the view that the deceased had not been provided oppor­tunity to make any sound. He also did not believe the prosecution allegation that the respondent had been identified in the light of the torches as no recovery memps in respect of them had been pre­pared.;