G.S.N.TRIPATHI, J. - (1.) THIS is an appeal under section 378 Cr. P.C. filed by the State of Uttar Pradesh against the judgment and order dated 28.3.1978 passed by the 1st Addl. Sessions Judge, Banda whereby he has acquitted Anis, Sardar, Khalil, Guffar and Sunder Lal under sections 148, 307 and 302 I.P.C. read with section 149 of the I.P.C.
(2.) THE prosecution case started on the basis of a written F.I.R. lodged by Sri Khalik Khan, P.W.1 at P.B. Mataundh, district Banda at 7.30 P.M. He has alleged that the deceased Ahmad Khan was his brother. He along with the deceased had gone to the fields situate in village Pachpahra. After seeing the fields they were returning home. It was about .M. Near the railway line, at a distance of about one furlong from village Gayara, the accused Anis armed with spear, Sardar, Gaffar, Khalil and Sunder Teli armed with guns, appeared there all of a sudden. Sunder Teli exhorted other accused to kill these two persons. Whereupon Khalil fired on the complainant and his brother, Ahmad Khan deceased was a little ahead. He was hit by the fire shot. The complainant challenged the accused, whereupon Sunder fell fired at him. However, he escaped unhurt and concealed himself in the Jwar fields. Jumman and Fasal also appeared there after hearing the alarm raised by the complainant. The accused after firing shot had also assaulted the deceased with the butt of their guns. After causing injuries to the deceased, the accused escaped. There was an inimity with the accused Sunder Teli and a suit was pending in the Civil Court. Other accused were inimical on account of relationship existing in between them. On account of these causes the accused had murdered the deceased. 3. On the basis of the written F.I.R., Chik report was registered at the police station on 9.11.1976 at about 7..M. The distance of the police station is about 7 Kms. The case was registered in the G.D. extract of which is on the record. The Investigating Officer had gone out of police station in connection with arrangement in Ram - Lila. The documents were sent to him. He received them at about 11 A.M. and proceeded for the spot.
(3.) ON the spot, he recovered blood -stained and ordinary earth and sealed them and prepared the memos for the same. A pant and pair of shoes, belonging to the deceased, were also recovered from the spot. They were sealed and a memo was prepared for the same. One fired catridge and a lathi were also recovered from the spot. Search for the accused continued. Their houses were raided but they could not be arrested. At a later stage they appeared in the court. The dead body of the Ahmad Khan was taken into possession by the I.O. and an inquest report was prepared. The dead body was sealed and sent for post -mortem examination. The post -mortem was conducted on 10.11.1976 at 2 P.M. on external examination, the Doctor found that it was the dead -body of well -built person. Rigor mortis was present all over the body. Decomposition had set in except some places on the abdomen. Eyes were closed and mouth was half -open. ;