Judgement

OZA, J. :- This appeal has been preferred by the State after obtaining leave from this Court against the acquittal of the respondents recorded by the High Court of Allahabad by its judgment dated 13th April 1977 hearing an appeal against the conviction of the respondents recorded by First Additional Sessions Judge, Etah convicting all the respondents under S. 302 read with S. 149, Ss. 395 and 147 and sentenced to life, 10 years and 2 years rigorous imprisonment respectively to each one of the respondents.

2. The prosecution case at the trial was that on 27-10-1974 A.S.I., Om Prakash Sharma accompanied by two constables Gauri Shanker, P.W. 2 and Kanauji Lal, P.W. 4 went to village Nidhauli Khurd, which was at a distance of three miles from Kotwali Etah, and arrested one Laturi there at about 1 or 1.30 p.m. Virendra Nath, deceased, had helped them in arresting the said Laturi. The A.S.I. and the two constables returned to the Police Station Kotwali Etah with Laturi in custody at 6.50 p.m. A few minutes later these constables, Gauri Shanker and Kanauji Lal, were given summons for service on one Girish of Village Nidhauli Khurd. So constables Gauri Shanker and Kanauji Lal returned to the Village Nidhauli Khurd the same evening at about 7.30 p.m. to serve the summons. It is alleged that at that time the two constables were wearing police uniforms and Gauri Shanker was carrying his personal DBBL gun and a belt of cartridges.

3. While they were in the village, Virendra Nath, deceased, informed them that a bad character named Dharampuri was staying at the house of Bahori Gir, and it is alleged that the Station Officer Kotwali Etah had earlier told these constables that Dharampuri was a bad character (badmash) belonging to Agra District and that he had to be arrested. When Virendra Nath informed these constables that Dharampuri was at the house of Bahori Gir, they went to the house of Bahori Gir and arrested Dharampuri at about 8-30 p.m. and after arresting him the two constables started for Etah with Dharampuri in custody and Virendra Nath, deceased, also accompanied them.

4. At about 9 p.m. when the constables accompanied by Virendra Nath, deceased and Dharampuri in custody reached near the field of one Matadin adjoining Etah-Shikohabad road, the respondents armed with spears, phersas and lathis reached there with intention to rescue Dharampuri from the custody of the constables. Seeing this, constable Gauri Shanker fired a shot in the air with his private gun in order to scare away the respondents. When this shot was fired the respondents stopped and the constables proceeded further. It is allleged that thereafter the respondents also advanced and then Gauri Shanker fired a second shot, again the respondents stopped for a while and the constables proceeded ahead. And after a short time the respondents again advanced towards the police party and asked them to release Dharampuri. It is alleged that at that time they threatened the constables and the constables refused to release Dharampuri and Gauri Shanker fired the third shot in order to deter the respondents. Hearing the noise, the witnesses and some other persons reached the place, some of whom were carrying torches and were flashing them. It is alleged that it was also a moonlit night. On this, according to the prosecution, the respondents assaulted the constables causing injuries to them and they rescued Dharampuri from the custody of the constables. They attempted to snatch the gun of the constable Gauri Shanker and it is then Virendra Nath intervened. He also told them not to snatch the gun and also physically intervened to prevent them from snatching the gun and the belt of cartridges from the constable. In this he fell down and the respondents succeeded in snatching the gun and the belt of cartridges and in this scuffle Virendra Nath was assaulted and he received large number of injuries as a result of which he died on the spot. The respondents, it is alleged, thereaft