Judgment

VENKATACHALIAH, J. :- This appeal, by special leave, is by the State of Uttar Pradesh preferred against the judgment dated 30-9-1983 of the High Court of Judicature at Allahabad setting aside the conviction and sentence passed against the two Respondent-accused in Sessions Trial No. 256 of 1981 on the file of the Sessions Judge, Bareilly, for offences under Section 302 read with Section 34, IPC. The learned Sessions Judge had handed down a sentence of imprisonment for life, but the High Court, in reversal of that conviction and sentence, acquitted the respondents.

2. The case of the prosecution may briefly be stated.

At 2.00 p. m. on 31-1-1981 in the town of Mirganj in the District Bareilly, in front of the house of a certain Lalan, the two respondents - Krishna Gopal and Vijai - who are related to each other as uncle and nephew, set-upon and attacked Harish, s/o. Mihilal, with knives causing serious injuries to which Harish succumbed at 6.40 p.m. the same day at the District Hospital, Bareilly, to which he was removed after the incident. The incident was witnessed by Omkar (P.W. 1), Khiali Ram (P.W. 2) who saw the attack from a close distance of about 20 paces and on account of whose protestations the accused persons hastened away from the scene, one of them leaving behind the knife used in the attack; Paranvir (P.W. 6) came on the spot soon thereafter and wrote the First Information (Ex. Ka. 1) at the scene as per instructions of injured Harish who signed it. Thereafter, Harish was taken to Mirganj Police Station which was just two furlongs away from the scene in an auto-rickshaw by Omkar (P.W. 1) and Mihilal. the father of Harish, who had also reached the spot by then. Ex. Ka. 1 was delivered at Station-house by injured Harish himself at 2.15 p.m. Harish who had also brought with him one of the knives left behind by the assailants, was deposited in the Station-house under Memo (Ex. Ka. 2) prepared in that behalf. Injured-Harish signed that Memo.

Thereafter, Harish was taken to the Public Health Centre at Mirganj accompanied by a constable. The investigating officer, Nanak Chand Sharma, (P.W.7), who came to the Station-house at 2.30 p.m. proceeded to Mirganj Hospital and recorded Harishs statement (Ex. Ka. 7). As no doctors were available at the Public Health Centre at Mirganj, injured Harish was taken to the District Hospital at Bareilly in a motor vehicle. Dr. Rajeev Aggarwal (P.W. 3) examined Harish at about 4.40 p.m. and noted the injuries on the person of Harish in the list, Ex. Ka. 3. Despite treatment at the District Hospital by the Surgeon Dr. Pundani and Dr. Sharma, Harish died at 6.40 p.m. at the hospital.

The accused Krishna Gopal was arrested at 6.30 p.m. on the same day. His Kurtha (Ex. 4) and his blood-stained Paijama (Ex. 5) were recovered, under Memo Ex. Ka. 10. The accused Vijai was arrested on 8-2-1981. Accused were put up for trial for offences under Section 302 read with Section 34, I.P.C. The motive for the killing was previous enmity between the accused persons and Mihilal, the father of the deceased. The accused denied the charge and pleaded not guilty. According to the drift of the suggestions made to the prosecution witnesses at the trial and from their statements under Section 313 Cr.P.C. they indicated that deceased Harish was a gambler and had sustained injuries at about 3.00 p.m. that day in a gambling brawl and that occasion was exploited by Paranvir (P.W.6) and others to foist a false case against them owing to previous enmity. Accused Krishna Gopal while admitting the seizure of his clothes under Ex. Ka. 10, however, denied that at the time of recovery they were bloodstained.

3. At the trial, before the learned Sessions Judge, the prosecution examined and relied upon the two eye-witnesses, Omkar (P.W.1) and Khiali Ram P.W.2). Dr. Rajeev Aggarwal (P.W. 3) spoke to the injury report (Ex. Ka.3), prepared by him. Dr. Balbir Singh (P.W.5), who conducted the post-mortem examination spoke to the p