JUDGMENT

P. Sathasivam, J.

1. Challenging the order of the High Court of Judicature at Allahabad dated 19.9.2002 in Criminal Appeal No. 812 of 1980 acquitting Kishanpal Singh, Suresh Singh, Mahendra Singh @ Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh (Accused Nos. 2,4,7,8,9 & 10), the State of Uttar Pradesh has filed this appeal.

2. The case of the prosecution is as follows:

On 21.6.1978 at 3.30 p.m., the sixteen accused persons gathered at the door of Gyan Singh and made a criminal conspiracy for killing Kaptan Singh and Raj Mahesh as they were harassing them unnecessarily. At about 4.00 P.M., Onkar Singh, Kishanpal Singh, Vijaipal Singh, Suresh Singh, Naresh Singh, Daulat Singh, Mahendra Singh @ Neksey Singh, Jaivir Singh, Sheodan Singh and Bahar Singh (Accused Nos. 1to10) reached at the place of occurrence with firearms. Onkar Singh (Accused No.1), Naresh Singh (Accused No.5), Daulat Singh (Accused No.6) and Sheodan Singh (Accused No.9) had guns while others had country-made pistols. When they reached the place of occurrence, Suraj Pal Singh, Kaptan Singh and Raj Mahesh were preparing fodder in the cattle troughs for their cattle in front of their chaupal. Suraj Pal Singhs sister Smt. Maya Devi and mother Smt. Resham Devi were also present there. The aforesaid accused persons challenged Raj Mahesh and Kaptan Singh while Onkar Singh and Naresh Singh shouted that they will be killed and the entire family be finished. Onkar Singh fired at Raj Mahesh while Naresh Singh fired at Kaptan Singh. When the accused persons opened fire, Suraj Pal Singh ran inside the Jhonpari to save his life and witnessed the incident. Maya Devi and Resham Devi rushed to save Kaptan Singh, Daulat Singh fired upon Maya Devi. Ram Autar, brother of Kaptan Singh and Ishwari Devi came there to save Kaptan Singh and Raj Mahesh. Resham Devi, Ram Autar and Ishwari Devi were also fired at and received injuries when they tried to save Kaptan Singh and Raj Mahesh. On seeing the people arriving, the accused persons ran away from the spot. Suraj Pal Singh came out of Jhonpari and found Raj Mahesh and Maya Devi dead. Kaptan Singh was breathing his last while Resham Devi, Ishwari Devi and Ram Autar were lying injured. Kaptan Singh died on the way to hospital. Suraj Pal Singh did not receive any injury. Suraj Pal Singh (PW-1) sent Brajaue Singh to call Natthu Singh, who arrived soon from his village, for escorting the injured as he had a licence for rifle. After the arrival of Natthu Singh, all the four injured were taken to police station, Sidhpura in a bullock-cart. Natthu Singh also accompanied them. Natthu Singh wrote the report at the dictation of Suraj Pal Singh. The said report was filed at 9.30 p.m. at the police station, Sidhpura. The case was registered and the injured persons were sent for medical examination. Dr. S. P. Dikshit, PW-11, examined the injured persons and prepared their injury reports. Dr. R.P. Yadav, PW-6, conducted the postmortem examination on the dead body of Smt. Maya Devi, Kaptan Singh and Raj Mahesh on 22.6.1978 and prepared the report. Mr. K.P. Sharma, S.I., PW-12, took up the investigation and completed most of the investigation. Thereafter the investigation was continued by his successor and charge sheet was submitted against the accused.

3. The State filed the case in the Court of VI Additional Sessions Judge, Etah, against the accused persons. The trial Court, after examining the evidence and other materials on record and after hearing the parties, held that accused Gyan Singh, Harbir Singh, Rampal Singh, Gopal Singh, Sher Singh and Yudhishter Singh (Accused Nos. 11 to 16), who were charged under Section 120 B I.P.C. were found not guilty and accordingly acquitted them. The trial Court held that the prosecution had proved its case beyond all reasonable doubt against all the other accused persons (accused Nos. 1 to 10) and held them guilty under Section 148 I.P.C. for committing offence of rioting after forming an unlawf