Judgment :

Dr. Arijit Pasayat, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court directing acquittal of the respondents. Two respondents along with two others faced trial for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short `IPC). Co-accused persons were acquitted by the trial Court.

2. Prosecution version in a nutshell is as follows:

On 23.9.1979, at about 11 Oclock in the night in village Fattupatti, Police Station Gambheerpur, District Azamgarh, the incident took place. The deceased was one Mool Chand, who is described as deceased hereinafter. The FIR was lodged the following day at 7.10 a.m. by Khelawan (PW.3) at whose house the deceased was allegedly sleeping on the fateful night. The distance of the police station from the place of occurrence was five miles. Deceased resided in the village aforesaid with his mother and other family members. The accused Jautam alias Andhi had property disputes with the deceased. Accused Har Chand was allegedly his associate residing in the same village. Earlier to the incident, deceased had obtained a decree relating to certain disputed property in his favour as against Jautam alias Andhi, a notorious person who had infused a sense of terror in the mind of Mool Chand and used to issue threats to him of his life. For this reason, Mool Chand used to sleep at the house of Khelawan (PW. 3). On the fateful night, he was sleeping outside the house of Khelawan (PW.3). At a little distance his mother Gomati Devi (PW.1) and his daughter Ramawati (PW 2) were also sleeping in the Verandah. A lantern was glowing. At about 11 Oclock in the night, the two respondents with two others appeared there. Both the respondents were armed with firearms. Mool Chand was caught hold of and present two respondents opened fire on him. He died instantaneously. Gomati Devi (PW.1), Ramawati (PW.2) and Khelawan (PW.3) witnessed the incident. On the lodging of the FIR on oral narration by Khelawan (PW.3), a case was registered and investigation was taken up.

3. After completion of investigation charge sheet was filed. The defence plea was one of the denial and alleged false implication. Prosecution primary relied on the evidence of three eye-witnesses PWs 1, 2 and 3. PW.5 was the doctor who conducted the autopsy.

4. The High Court by a practically non-reasoned order directed acquittal. The appeal filed by the respondents was allowed after referring to the evidence of the eye witnesses by concluding as follows:

"Obviously, night was chosen as time for commission of crime by the culprit (s). Two of them (present appellants) allegedly used firearms. It is against inherent probabilities of the situation that two of the associates of the present appellants would have picked him up from cot, taken him to some distance and would have then thrown him on the ground before firing was resorted to by the present two appellants. The natural and probable conduct of the appellants holding firearms would have been to shoot him dead immediately on locating him sleeping on the cot. There could hardly by any necessity of his first being picked up from cot, taken to some distance and thrown on the ground. This part of the testimony of Gomti Devi PW.1 and Ramawati PW2 also does not fit in natural probabilities of situation that two of the culprit(s) would be catching hold of the victim at the time of actual shooting, risking their own life. Holding of the victim at the time actual shooting is always risky for one who holds him because the shot may hit him instead the victim who would naturally struggle to save himself from the shot. It may also be observed at the risk of repetition that even if it is taken for the sake of argument (though it is not believable) that the victim was picked up from the cot and thrown on the ground after being taken for a few steps, then also the incised wounds found on his person go unexplained. In all probabilities