Honble MUKHERJEE, J.–Jagdish Narain, the appellant No. 1, along with his two sons Avdhesh and Avinash and two friends Rameshwar Dayal, the appellant No. 2 and Surya Prakash was tried by the Additional Sessions Judge, Pilibhit, for rioting and murder of his step brother Jitendra Nath. The trial ended in an acquittal, and aggrieved thereby the State preferred an appeal. During the pendency of the appeal Avdhesh and Surya Prakash died and consequently their appeal abated. As regards others, the High Court affirmed the acquittal of Avinash but reversed that of the two appellants (the respondents therein) and convicted and sentenced them under Section 148 and 302, read with Section 149 IPC. The above order of conviction and sentence is under challenge in this appeal preferred under Section 379 Cr. P.C.

(2). Shorn of details the prosecution case is that on February 11, 1977 the deceased, his son Achal Kumar (P.W.1) and his servant Devi Ram (P.W. 2) were carrying sugar cane in a bullock-cart from their village Mar to a mill in Bilsanda for getting the same weighed. While P.Ws. 1 and 2 were in the bullock cart with the latter driving it, the deceased was following the cart on foot. At or about 2P.M. when the cart had, after crossing a culvert situated on the kachha/road, reached near the field of one Ram Autar, the five accused persons came out from behind a heap of straws armed with deadly weapons including guns. Then the appellant No. 1 fired a shot at Jitendra Nath felling him down. The gun which the deceased was carrying also fell down. On the exhortation of Avinash and Avdesh, the appellant No. 2 also fired a shot hitting Jitendra Nath. Thereafter the miscreants fled away along with the gun of the deceased.

(3). Achal Kumar (P.W. 1) then rushed to Bilsanda Police Station, which was at a distance of one mile, and lodged an information about the incident. On that information a case was registered against the accused persons and Inspector D.R. Thapalyal (P.W. 6) took up investigation. He went to the scene of occurrence accompanied by other police personnel and after holding inquest upon the dead body sent it for post mortem examination. He prepared a site plan and seized some blood stained earth, two pellets and one pair of shoes from the site. On completion of investigation he submitted chargesheet against the accused persons and in due course the case was committed to the Court of Session.

(4). The accused persons pleaded not guilty to the charges levelled against them and their defence was that they had been falsely implicated.

(5). To sustain the charges levelled against the accused persons the prosecution relied upon the ocular accounts of Achal Kumar (P.W. 1) and Devi Ram (P.W. 2) who were allegedly in the cart, and Daya Ram (P.W. 3) who claimed that he was passing along the road at the material time. `Besides, the prosecution examined, the doctor, who held postmortem exa- mination upon the deceased the Investigating Officer and some other formal witnesses. The reasons which weighed with the trial Court to disbelieve the evidence of the eye witnesses and, for that matter the prosecution case, are as under:–

(i). The testimonies of the eye witnesses stood contradicted by their earlier statements recorded under Section 161 Cr. P.C.

(ii). Though, according to the eye witnesses, the deceased was attacked while going along the salt (road) his dead body was found in the field (of Ram Autar) and no explanation was offered by the prosecution to reconcile the anomaly.

(iii). Even though the Investigating Officer admitted that he knew from the very beginning about the importance or the place from where the shots were fired he did not indicate that place in the site plan he prepared and such failure made the investigation faulty and suspicious.

(iv). No attempt was made by the Investigating Officer to ascertain to whom the pair of shoes found near the dead body belonged; and

(v). A number of documents were filed on behalf of the accused persons t

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