Important point
High Court has committed an error in interfering with the order of acquittal of the appellants recorded by trial Court as the same did not suffer from the vice of per­versity.

Judgment

B.N. Agrawal, J.—The appellants along with accused Surendra Pratap Chand and Kaushalendra Shahi were charged and tried for offences punishable under Section 148/302/307/324/394 of the Penal Code but were acquitted of all the charges by trial Court. On appeal being preferred by the State of Uttar Pradesh, the High Court reversed the order of acquittal in relation to both the appellants and convicted them under Section 302 read with Section 34 of the Penal Code and sentenced to undergo imprisonment for life. They have been further convicted under Section 307 read with Section 34 and Section 324 read with Section 34 of the Penal Code and each one of them was sentenced to undergo rigorous imprisonment for a period of five years and one year respectively. Appellant No. 1 has been also convicted under Section 394 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. The sentences, however, have been ordered to run concurrently. So far the other two accused persons are concerned, the order of acquittal passed by the trial court has been upheld.

2. Prosecution case, in short, is that both the appellants are the sons of accused Surendra Pratap Chand and accused Kaushalendra Shahi is their co-sharer. There was a long standing enmity between the accused persons on the one hand and members of prosecution party on the other inasmuch as appellant No. 1 got a case instituted through his servant Ramdhari under Section 392/411 of the Penal Code at Gorakhpur against Nagendra Pratap Shahi and Dhirendra Pratap Shahi, father and uncle res­pectively of Vinay Kumar Shahi (PW 1) - the informant besides their servants Rattan Yadav and Ganesh in which case 28th July, 1978 was the date fixed in Gorakhpur court for appearance of the accused persons of that case. On 28th July, 1978, Dhirendra Pratap, Rattan (PW2) and Ganesh along with one Lallu Prasad Gupta had gone to appear in the said case and after attending the court, they stayed at Gorakhpur during night. The informant-Vinay Kumar, who was a student of L.L.B., was at Gorakhpur from before. On 29th July, 1978, all the aforesaid persons along with Vinay Kumar (PW 1) and Rajdeo (PW 4) left Gorakhpur at 8.30 a.m. for their village by a Jeep bearing No. UTA - 2081 which was being driven by its driver Sita Ram (PW 3). The front seat of the Jeep was occupied by Dhirendra Pratap, Lallu Prasad, Vinay Kumar (PW 1) and Rajdeo (PW 4) besides Sita Ram, driver of the Jeep. The other persons including Rattan (PW 2) were occupying rear seat of the Jeep. At about 9.00 a.m., when the Jeep crossed Jamura Nala bridge, another Jeep of black colour came from the opposite direction and stopped near the speed breaker. The appellants and other two accused persons referred to above armed with guns got down from the said Jeep and out of them, the appellants started firing on the members of the prosecution party who were sitting on the front seat of the Jeep as a result of which Dhirendra Pratap, Lallu Prasad, Sita Ram (PW 3) and Rajdeo (PW 4) received injuries. Accused persons thereafter are said to have fled away whereupon all the four injured persons were taken to Khajani police station by Vinay Kumar (PW 1), who is said to have made over a written report there at 9.30 a.m. on the basis of which first information report was drawn up against the accused persons under Section 307 of the Penal Code. Injured Rajdeo Singh (PW 4) was sent to Primary Health Centre, Khajani, for treatment whereas other three to District Hospital, Gorakhpur. But on the way, Dhirendra Pratap and Lallu Prasad succumbed to their injuries and when they reached District Hospital, Gorakhpur, doctor declared them dead. Therefore, the case registered by the police under Section 307 of the Penal Code was converted into one under Section 302 of the Penal Code.

3. The police after registering the case took up investigation and on completion thereof submitted charge sheet against all the four accused persons including the app