JUDGMENT

Santosh Hedge, J.-The respondents herein were charged for offences punishable under Section 302 and under Section 302 read with Section 34 IPC by the VIth Additional Sessions Judge, Badaun for having committed the murder of one Jagan son of Jaspal Singh (PW 1) on 19.9.1982 at about 10 a.m. by the use of fire arms and lathis. On appeal, the High Court of Allahabad allowed the same and set aside the conviction and sentence imposed on the respondents and acquitted them.

It is against the said judgment of the High Court, the State of U.P. is in appeal.

2. Brief facts necessary for the disposal of this appeal are :

3. There was some dispute between the respondents and Jaspal Singh who has been examined as PW 1 in this case in regard to certain land originally owned by one Naraini. PW 1 claimed that he was in possession of the said land on batai basis whereas the respondents claimed that they were in possession of the said land by virtue of the agreement of sale executed by the said Naraini s heirs after her death. The further case of the prosecution is that at the relevant point of time PW 1 had grown some nuts and millets which were ready for harvest and on the date of incident PW 1 and his son deceased Jagan came to know from one Gulfam that the accused persons were uprooting the standing crop in the said field, therefore, PW 1 and the deceased went to the field whereupon they found these respondent uprooting the crop. When deceased told the respondents that they are in possession of the land on the basis of batai and if the dispute is settled in favour of the respondents they would pay the batai to them, whereupon the prosecution alleges the respondents by saying that they would teach a lesson, A-3 using the double barrel gun which he was holding fired two shots at the deceased which injured him and then the deceased started running away from the place. The gun shots received by the deceased made him fall down and at that time it is the case of the prosecution that PW 1 was about 50 paces away from his son. The further case of the prosecution is that the Accused 1, 2 and 4 assaulted the fallen deceased with their sticks and A3 again fired two shots from his double barrel gun which caused the instaneous death of the deceased. The incident in question was also noticed by PW 2 Ram Avtar and PW 4 Bhajan Lal who happened to be working in their own fields nearby. A complaint in this regard was lodged by PW 1 at about 12.20 p.m. at Islamnagar Police Station about 8 kms. away from the place of incident. It is based on the said complaint and after the investigation a charge sheet was filed and in the trial, as stated above, the respondents were convicted wherein A3 was convicted for offence punishable under section 302 IPC and A1, A2 and A4 were convicted for offences punishable under Section 302 read with Section 34 IPC and were awarded imprisonment for life.

4. As stated above, in appeal the High Court has reversed the said judgment on the ground even though the information as to the presence of the respondents in the field was first given to PW 1 by Gulfam, his name is not mentioned in the FIR nor has he been examined by the prosecution. It is also noticed that the nature of possession of the land that is on batai basis from Naraini was also not mentioned in the FIR, the conduct of PW 1 is not natural inasmuch as when his son was being assaulted, he did not take any steps to save him except for shouting. The High Court also felt if the real incident has taken place in the manner stated by the prosecution the target of attack should have been PW 1 and not the deceased. The High Court did not place reliance on the evidence of PWs 2 and 4 because they were closely associated with PW 1, as a matter of fact, both PWs 1 and 2 have been convicted for a murder committed earlier in the village. The High Court also found discrepancies in the evidence of PWs 1, 2 and 4 in regard to actual attack on the deceased. On the above basis, the High