N.S.GUPTA, J. - (1.) The eleven accused respondents named above along with one Pothi (who died before the commencement of the trial) were charged for offence punishable under Sections 120-B/147/148/302/307/149, I.P.C. before Shri B.I.S. Sodhi, the then 1st Addl. District and Sessions Judge, Badaun, who vide his judgment and order dated 19-8-1978 found all these accused respondents 'not guilty' and accordingly acquitted them. Feeling aggrieved by the said judgment of acquittal the State of U.P. has come up in appeal before this Court.
(2.) The prosecution story briefly stated is as follows :-The complainant Bhawar Pal Singh, P.W. 1 was the son of deceased Mulaim Singh. He was resident of village Khiria Madhukar, police station Usehat, district Badaun. Munshi Singh another deceased was the uncle of this Bhawar Pal Singh. About a year before the occurrence of this case, one Budhpal Singh of his village was murdered. Accused respondent Yadunath and Shyam Pal hereinafter referred to as (A-8) and (A-9) were real brothers. The father of the complainant Mulaim Singh (deceased), his uncle Munshi Singh (deceased), Radhey and two others were prosecuted in the said murder case of Budhpal. The said case was going on at the time of the occurrence of this case. About a year before the murder of Budhpal, there was an exchange of fire in between the father of the complainant viz. Mulaim Singh (deceased) and accused respondent Hori Lal, hereinafter referred to as (A-1), that was the day of Holi. About 10-12 days before the occurrence of this case one Janki Prasad of his village was assaulted by Ramnath, Atroo (A-6), Rameshwar (A-4) and Ram Swaroop (A-3). Deceased Munshi Singh had accompanied Lal Janki Prasad to Police station and with his consultation a report was lodged against these accused persons. They all were close associates of accused respondent Hori Lal (A-1). Hori Lal (A-1) had thereafter threatened to the complainants father to kill him. Budhpal was the resident of village Nagla Rashmi, which was situate at a distance of about one Kos from village Khiria Madhukar, the village of the complainant. Budhpal and Hori Lal were good friends. They used to dine, drink and gamble together. Since after the murder of Budhpal and threat meted out by Hori Lal, the complainant's father deceased Mulaim Singh became vigilant.
(3.) The occurrence of this case had taken place on 27-6-1977 at about 5.00 p.m. in village Khiria Madhukar, police station Usehat, district Badaun, which lay at a distance of about 15 kms. from the police station. On that they the complainant's younger brother Jhabboo's, father-in-law Ram Dayal injured (P.W. 5) had come to the complainant's house. The complainant's father Mulaim Singh (Deceased) had gone to village Makrauli for purchasing Bel of Shakarkandi for being planted into his fields, which lay at a distance of about two furlong from the complainant's house some time during noon. Along with Mulaim Singh (deceased) his nephew Radhey had also gone. The deceased Mulaim Singh was a licence holder of a gun. He left his gun at his house. The complainant's uncle Munshi Singh and Ram Dayal, P.W. 5 remained at his residence. When the complainant, his father Mulaim Singh (deceased) and his cousin brother Radhey reached at village Makrauli, Pt. Ram Saran P.W. 4 expressed his inability to supply the Bel on the ground that he had since watered his fields and because of rain, it was not possible for him to take out the Bel of Shakarkandi from his fields. The deceased Mulaim Singh paid a sum of Rs. 20.00 as earnest money for the purchase of the said Bel. One Ram Murti (deceased) who was a resident of village Pahenia, district Shahjahanpur was a distant relation of Pt. Ram Saran. He had gone to purchase some bullocks there. The complainant's father Mulaim Singh (deceased) offered to him that he had certain bullocks to sell. Thereupon Pt. Ram Saran, P.W. 4, along with Ram Murti (deceased), Latoori, P.W. 6 and Latoori's uncle Chokhey came back to the house of the complainant in village Khiria Madhukar at about 4.30 p.m. The house of accused respondents Rameshwar (A-4) and Ram Swarup (A-3) lay on the way to the house of the complainant. Accused Rameshwar and Ram Swarup saw the complainants, father Mulaim Singh (deceased), Pt. Ram Murti (deceased), Ramsaran, Latoori and Chokhey coming towards the house of the complainant. The house of Rameshwar (A-4) and Ram Swarup (A-3) lay at a distance of about 60-70 paces from the house of the complainant.When the complainant, his father deceased Mulaim Singh, Ram Murti (deceased), Pt. Ram Saran, P.W. 4, Latoori and Chokehy were at a distance of about 30-35 paces from their house, Atroo (A-6), Kalyan (A-2), Mahabir (A-5), Jadunath (A-8), Shyam Pal (A-9), Brij Pal (A-10), Beer Sahai (A-11) Pothi (Accused since dead) and one unknown came out from the house of Ram Swarup (A-3) and Rameshwar (A-4). Atroo (A-6), Satkoo (A-7), Rameshwar (A-4), Ram Swarup (A-3), Kalyan (A-2) and Mahavir (A-5) were the residents of that very village Khiria Madhukar, whereas the others viz. Jadunath (A-8), Shyam Pal (A-9) were the residents of Rashmi Nagla, Beer Sahai (A-11) and Brij Pal (A-10) were the residents of village Vikrampur and Pothi (since dead) was the resident of village Behti. The other unknown accused who was wearing Khaki uniform was unknown to the complainant. All the accused respondents were known to the complainant since before. The prosecution maintained that accused Atroo, Ram Swarup, Shyam Pal and Jadunath were armed with guns; accused Satkoo, Rameshwar were armed with Kanta; Kalyan and Pothi (since dead) were armed with Ballam, Brij Pal, Beer Sahai, Mahabir as also the unknown person were armed with Lathies. Feeling frightened with these accused respondents, the complainant, his father Mulaim Singh (deceased) and other persons who were accompanying them entered into the house of the complainant and had closed the doors. The accused respondents surrounded the house of the complainant. They shouted to break open the doors and to enter into the house of the complainant to kill them. Then the complainant's father Mulaim Singh went over the roof along with his gun. The complainant's younger brother Itwari and Pt. Ram Saran along with his gun also went over the roof. On hearing the noise, complainant's uncle who used to reside after one house of the complainant's house also came over there from roof to roof. The complainant came into his courtyard and stood there. Ram Murti (deceased), Ram Dayal, P.W. 5, Chokhey, Latoori, P.W. 6 and Radhey also stood by his side in the courtyard. The prosecution claimed that the accused respondents came over the roof of the complainant's house over the roof of Bagi Singh and started assaulting the complainant's father Mulaim Singh (deceased), his uncle Munshi Singh (deceased) and his younger brother Itwari (deceased) by means of Lathies, Spear and Kantas. Pt. Ram Saran, P.W. 4 also sustained gun shot injury. He, along with the his gun had fallen down. Ram Murti (deceased) and Ram Dayal, P.W. 5 ran outside his house. The accused persons assaulted Ram Murti and Ram Dayal, P.W. 5, outside the complainant's house. The accused persons who were armed with guns opened fire in air. Ram Murti and Ram Dayal, P.W. 5 were assaulted by means of Lathi, Kanta and Ballam. Feeling frightened with the noise of the gun shots no villagers came out and all of them closed their houses. This incident had taken place at about 5.00 p.m. as a result of the injuries caused by the accused persons, the complainant's father Mulaim Singh died on spot over the roof of Durga. The complainant's younger brother Itwari died on the roof of his house. His uncle Munshi Singh was assaulted over the roof of Joginder Teli. He had fallen down over the chappar of Jogendar Teli and from there into the courtyard of the complainant. After assaulting the complainant's father, brother uncle, Ram Murti, Ram Saran, P.W. 4, and Ram Dayal, P.W. 5, the accused respondents ran away from the spot, but while running away they took away the gun along with belt of cartridges belonging to the complainant's father Mulaim Singh (deceased). Accused persons also took away the gun and the belt of cartridges of Pt. Ram Saran (P.W. 4). Ram Murti (deceased) and Ram Dayal injured (P.W. 5) sustained a number of injuries. They were lying dead outside the house of the complainant, whereas the complainant's father Mulaim Singh, his uncle, Munshi Singh and brother Itwari died on spot, Ram Murti succumbed to his injuries after about three days of this occurrence. A written report Exh. Ka.1 about the occurrence of this case was lodged at police station Usehat by the complainant Bhanwar Pal Singh (PW 1) at about 1.30 p.m. on 27-7-1977, that is, after about five and half hours of the occurrence where he had gone on foot and which police station lay at a distance of about 15 kms. from his house.;