Judgment :

B. SUDERSHAN REDDY, J.

1. This appeal under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 is directed against the judgment of the High Court of Judicature at Allahabad in Criminal Appeal No. 2514 of 1982 whereby the High Court allowed the appeal preferred by the State and accordingly reversed the judgment and order of acquittal passed by the trial Court under Sections 147, 148, 302/149, IPC. The High Court having convicted the accused, sentenced them to life imprisonment.

2. During the pendency of the appeal preferred by the State in the High Court, the accused Awadhoo (A-1) and Birbal (A-3) died and the appeal against them was ordered to be abated. This appeal is preferred by Durbal, accused No. 2.

3. In order to appreciate as to whether the judgment of the High Court reversing the order of acquittal, requires any interference at our hands, we may have to notice the prosecution case in brief: The origin of the prosecution case lies in an altercation between the accused and one Kaldhari (PW 1) alleged to have taken place two days prior to the date of incident on 23rd December, 1979. It is the case of the prosecution that one Ramdhani (not examined) in partnership with Kaldhari (PW 1) had obtained lease of fishery rights in respect of a pond situated in Harirampur village. They had raised fish in the said pond. The accused were claiming right to collect fish from the said pond. Kaldhari (PW 1) along with his companions had gone to village Harirampur for the collection of the fish from the pond. The accused along with their associates had also assembled there to collect the fish from the pond. Their attempts were resisted by Kaldhari (PW 1) resulting in an altercation. Awadhoo (A 1), since deceased, threatened Kaldhari (PW 1) of his life. This incident had taken place in the presence of Madan (PW 4) and one Sidhu (not examined).

4. It is further the case of the prosecution that on 24th December, 1979 at about 10.30 p.m. in the night while Kaldhari (PW 1) was sleeping in his house with its door bolted from inside, his father Abhi Raj (deceased) and nephew Bal Kishun (deceased) were sleeping on a takhat in the verandah, all of a sudden, Abhi Raj and Bal Kishun (both deceased) raised alarm and in the meanwhile, someone started thumping on the door of the room where Kaldhari (PW 1) was sleeping. As he was about to open the door, he could hear Awadhoo (A 1) commanding him to open the door. Kaldhari (PW 1) identified him from his voice. Kaldhari then started raising alarm from inside the house. This attracted Sonai (PW 3), Sheo Kumar (PW 2) and Lal Mani (not examined) from the neighbourhood who reached the place of occurrence flashing torch lights. On seeing the witnesses, Kaldhari gathered courage and opened the door of his room and came into verandah. He saw that all the four accused accompanied by two or three unknown associates were assaulting his father Abhi Raj and nephew Bal Kishun with knives and bhalas. On finding that the villagers were gathering at the scene of offence, the miscreants retreated and before turning away from the place of occurrence, they also opened fire. The police station, as per chik FIR is about 20 kilometers away from the place of occurrence. Kaldhari (PW 1) could not go to the police station in that night. In the early morning he got the information registered. At that time, Ram Awadh Chaudhary (PW 8), the Investigating Officer, was present at the police station who having registered the First Information Report, proceeded to the scene of offence and commenced the investigation. He recorded statements of the witnesses and collected lantern and torches which were the alleged source of light in which the witnesses claimed to have seen the occurrence. He also collected blood stained earth and other material including an empty cartridge shell and some pellets of the shot which was fired by the miscreants on the spot. The dead bodies were then sent