JUDGMENT

Surinder Singh Nijjar, J. —

1. The present appeal is directed by the State of U.P. against the final order and judgment dated 23rd March, 2004 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 577 of 1981 whereby the High Court allowed the criminal appeal by setting aside the order of conviction recorded by the trial court against the respondents.

2. We may now briefly note the background facts, necessary for the adjudication of the present matter. It is the case of the prosecution that on 20th August, 1977 at around 3.30 p.m., Gulab and his nephew Chhatrapal were grazing their cattle in Dhadhai Haar. Preetam (hereinafter referred to as ‘respondent No.1’), who is a collateral of the above two, came there and asked Chhatrapal and Gulab, as to why they were grazing their cattle in his field. Chhatrapal and Gulab told him that they were not grazing in his field. Respondent No. 1 then abused and started beating them. Chhatrapal and Gulab retaliated and started beating Preetam. On an alarm raised by respondent No. 1, his family members, who were present in the vicinity doing work in their fields, namely Dilli, Tutti, Mukundi, Karan Singh, Balli, Katti, Hari Singh, Baura, Thakurdas and Siya Brahims came running to his rescue. They were armed with kulharis and lathis.

3. Respondent No. 1, Karan Singh (hereinafter referred to as ‘respondent No. 2’) and Mukundi (hereinafter referred to as ‘respondent No. 3’) were armed with axes and Katti alias Hari Singh (hereinafter referred to as ‘respondent No. 4’) and Tutti alias Babu Lal (hereinafter referred to as ‘respondent No. 5’) were armed with lathis. On seeing them, Chhatrapal and Gulab, due to the fear of the respondents, ran towards the village Abadi. They were prevented from reaching their house by the respondents. They were encircled in the field of Hirwa, which was in the Thakur Baba Har. In the field, they were assaulted by respondent Nos. 1, 2 and 3 and seven other accused persons with axes and lathis. On hearing the voice of Chhatrapal and Gulab, informant (PW1) and his brother, Bahadur (PW2) rushed to save them. They were ploughing their fields in the near by ground. On reaching the spot of the incident, they were also assaulted. Some other witnesses also arrived at the spot of occurrence on hearing the alarm raised by Punna, PW1 and Bahadur, PW2. They include his daughter Lachchi and Sunkiya, wife of his brother Bahadur. After the assault, the respondents ran away towards the village. Gulab and Chhatrapal were lying dead in a pool of blood in the field of Hirwa. They had suffered axe and lathi injuries. Due to rain and fear of the respondents, they did not go to the police station that day. The FIR was lodged on 21st August, 1977 at 8.30 a.m. by Punna, PW1. The distance between the police station and the place of occurrence was 5 miles.

4. On the prosecution side, apart from the two deceased, Punna, PW1 suffered only blunt object injuries. Bahadur, PW2 had suffered an incised wound 2 cm x 5 cm muscle deep at the border of the right mandibular angle 4 cm, below right ear. These injuries were medically examined by PW6, Dr. R.S. Mishra on 21st August, 1977 between 10.30 and 11.30 a.m. He had proved the injury reports of Punna and Bahadur. A perusal of his statement shows that none of the injuries were grievous in nature. No X-Ray report or any other supplementary reports were placed on record. The injuries were apparently simple.

5. The postmortem examination on the body of the two deceased, Gulab and Chhatrapal was conducted by PW8, Dr. V.D. Mishra. In his report, he stated that there were three incised wounds on the body of Chhatrapal, two of them being on head, one covered right side face, lower part of the right ear and part of neck and the other on the left side of head 12 cm above the left ear. In both the injuries underlying bones were cut. The third injury was on buttock. In the opinion of the doctor, cause of death was due to shock and