POONAM SRIVASTAV,J. - (1.)THE instant government appeal arises from the judgment of acquittal dated 19.3.1982 passed by the Ist Additional District and Session Judge, Banda in Session Trial No. 335 of 1980.
Seven accused namely Pratap, Harpal, Pulla alias Ram Swarup, Sheo Gopal, Rameshwar, Jaipal and Gatti were charged for the offences under Sections 302, 149 I.P.C. for having murdered Arjun Singh, Abhilakh Singh and Layak Singh all sons of Baij Nath Singh. Accused Pratap, Jaipal, Gatti, Pulla alias Ram Swarup and Rameshwar were given a clear acquittal holding not guilty and accused Sheo Gopal and Harpal Singh were given benefit of doubt and thereby acquitted. This government appeal was preferred and at the time of admission, leave was refused in respect of accused Pratap, Jaipal and Gatti vide order dated 21.6.1982 and remaining four accused Harpal Singh, Sheo Gopal, Pulla alias Ram Swarup and Rameshwar were issued notices. They got themselves bailed out and were arrayed as four opposite party in the instant appeal.

(2.)THE prosecution story as unfolded during trial is that Pratap's son Sheo Charan was murdered two and half years before the incident. Basdeo and Hajari Brahmans were prosecuted for the murder but they were acquitted. Subsequent to their acquittal, they left the village. Baijnath Singh purchased the house of Basdeo on 22.6.1979. Baijnath Singh is the brother of deceased Arjun Singh and father of two deceased Abhilakh and Layak. Pratap was annoyed because Baijnath Singh purchased the house of Basdeo who had killed Pratap's son. He voiced his annoyance 8 days before the incident which took place on 7.7.1979. Three deceased were sitting in Baithaka of Ramadheen Singh and Gayadeen Singh. Ramadheen Singh, Pulla alias Ram Swarup and Rameshwar Singh were also lying there. Pulla alias Ram Swarup was armed with a gun belonging to one of his relations Bhagwandeen Singh resident of village Bhiharka. Rameshwar Singh was also carrying the gun of a relation of his belonging to village Bhiharka. All the aforesaid persons were in Baithaka for almost 4-5 hours. Later the remaining five accused namely Pratap armed with lathi, Jaipal armed with Bhala, Harpal armed with gun, Gatti son of Jaipal armed with Bhala and Sheo Gopal son of Pratap armed with gun arrived there at about 4.00 P.M. Pratap exhorted to kill them as they had purchased the house of his enemy. On the exhortation, four accused armed with gun opened fire and those armed with Bhala started wielding blows. The victims started shrieking and calling for help on which Maheshwari Singh PW-1, Surya Bhan PW-2 and other members of the family and residents of village arrived at the scene of occurrence. The accused fled away towards south.
F.I.R. was lodged on the next day i.e. 8.7.1979 at 7.30 A.M. at police station Mataundh by Maheshwari Singh son of Arjun Singh. The Station Officer Police Station Mataundh reached the place of occurrence on 8.7.1979 at 10.00 A.M. and he recovered the dead bodies of Abhilakh Singh and Layak Singh from the Baithaka of Ramadheen Singh and dead body of Arjun Singh from the passage situated between Baithaka and Chabutara. After preparing the inquest report, the dead bodies were sent for autopsy which was conducted on 9.7.1979 between 10.40 to 14.00 hours at District Hospital, Banda by Dr. G. J. Gupta PW-10. Investigation was handed over to Naipal Singh Yadav on 24.8.1979 who submitted charge sheet against the accused persons after completing investigation.

(3.)THE prosecution has examined 11 witnesses Maheshwari PW-1, Surya Bhan PW-2, Bhulla PW-5 and Nazarbali PW-6 are the alleged eye witnesses of the occurrence. They have given an account of the incident. Salona Singh PW-3, brother-in-law of deceased Abhilakh Singh has proved the copy of telegram dated 8.7.1979 purporting to have been given by him to D.M., S.P. And C.M.O., Banda to the effect that the accused persons were trying to influence the doctor. Basdeo PW-4 has proved the sale deed Ex. Ka-3 dated 22.6.1979 executed by him in favour of Baij Nath Singh. Madho Rai Marathay PW-7 is said to have prepared a map of the site Ex. Ka-20 and photo print Ex. Ka-6 to Ex. Ka-12 with negatives Ex. Ka-13 to 19 at the instance of the complainant. Constable Hardayal PW-8 took the dead bodies to hospital for post mortem. He has proved the same. Ramadheen PW-9 nominated in the first information report and said to be present in his Baithaka in the company of the deceased and some of the accused has not supported the prosecution version. He has stated that no incident took place in his Baithaka between 1.00 and 8.00 P.M. on 7.7.1979. He has given a different account of the incident. Dr. G.J. Gupta PW-10 has proved the post mortem reports Ex. Ka-21 to Ka-23 in regard to Layak Singh, Abhilakh Singh and Arjun Singh. Sri N.S. Tomar PW-11 has proved the chik report Ex. Ka-25 G.D. extract whereby a case was registered (Ex. Ka-26), inquest report, diagram and challan of dead bodies marked Ex. Ka-27 to Ka-35. He recovered blood stained Gadda and Baan under memo Ex. Ka-36, blood stained and simple earth under memo Ex. Ka-37 from the place where Abhilakh Singh was murdered. Blood stained and simple earth under memo Ex. Ka-38, blood stained Gadda under memo Ex. Ka-39 was recovered from the place of murder of Layak Singh. Similarly blood stained and simple earth under memo Ex. Ka-40, blood stained clothes and Janau etc. under memo Ex. Ka-41 was recovered from the place of murder of Arjun Singh. Two empty cartridges, 3 wads and 3 pellets were recovered from the scene of occurrence under memo Ex. Ka-42 site plan Ex. Ka-43 was prepared. The charge sheet Ex. Ka-45 was submitted by S.I. Naipal Singh on 6.10.1979.