Hon’ble Kalimullah Khan, J.—This Government Appeal No. 3146 of 1983 under Section 378 Cr.P.C. has been preferred by State of U.P.-appellant challenging the impugned judgment and order of acquittal dated 3.9.1983 delivered by Sri N.P. Verma, VII Additional Sessions Judge, Etah in S.T. No. 145 of 1983 (State v. Sudhir Kumar and five others) under Section 302/149 I.P.C., Police Station Sidhpura, District Etah whereby he has recorded a finding of acquittal against the respondents.

2. The aforesaid judgment and order of acquittal has been challenged on the ground that it is against the law and facts of the case, hence deserves to be set aside.

During the pendency of this Government Appeal accused respondent Nos. 4 and 5 Gopal and Nahar Singh have died and, therefore, vide order dated 2.12.2010 appeal filed against them stood abated. This judgment now pertains with accused respondent Nos. 1, 2, 3, and 6 Sudhir Kumar, Pappu alias Brij Bhushan, Ram Larete and Gajju.

3. The case of the prosecution is that on 24.1.1983 at about 5:00 p.m. near the Gher of one Jitendra in village Memra, Police Station Sidhpura, District Etah, accused respondents formed an unlawful assembly, the common object of which was to commit murder of Hari Om Pandey and in prosecution of their common object of such assembly, they committed the offence of rioting and while committing the rioting, they were armed with deadly weapons (gun, rifles and country made pistols) and they fired with their weapons at Hari Om Pandey with intention to commit his murder. He received fire arm injuries at his person and died at spot.

4. A written report was lodged at Police Station Sidhpura on 24.1.1983 at 7:30 p.m. by Smt. Rajeshwari Pandey, wife of Hari Om Pandey to the effect that on 24.1.1983 at about 5:00 p.m., Smt. Rajeshwari, her mother-in-law, Sarswati devi and sister-in-law (Nanad) Shakuntla Devi were sitting on the roof and enjoing the sun-shine. Her son Arvidnd Kumar was standing beneath the ‘Neem’ tree adjoining to her house. Her husband was coming from the fields and the moment, he reached in front the gate of his house, accused Sudhir Kumar, Pappu, Gopal, Ram Larete, Nahar Singh and Gajju, armed with ‘Kattas’ guns and rifles, sourrounded her husband Hari Om Pandey in the Galiyara in front the house near the ‘Neem’ tree. Sudhir Kumar and Pappu challendged him and said “ Aaj Kahan Bachkay Jayega, Sab Badley Aaj Chuka Langey”. At this her husband turned back and ran towards the ‘Gher’ of Jitendra. The accused chased and killed him with fire arms in the ‘Gher’ of Jitendra. She, her mother-in-law etc. raised alarm and witnesses Rampoot and Dalli saw the occurrence.

On this report, case crime No. 16 of 1983 under Sections 147, 148, 149, 302 of the I.P.C. was registered against the accused. Sri Virendra Pratap Singh, S.I. Investigated the case. He reached the spot, prepared Panchayatnama etc. and sent the sealed dead body of deceased for post-mortem. After completing the investigation, he submitted a chargesheet against the accused.

5. The learned trial Court framed charge against all the accused under Sections 148, 302/149 I.P.C. The accused pleaded not guilty and claimed their trial.

In order to prove its case prosecution examined six witnesses. Smt. Rajeshwari wife of Hari Om Pandey deceased is the first informant. She examined herself as P.W.1 and has proved report Exhibit Ka-1 and deposed that all the six aforesaid accused committed the murder of her husband by causing fire arm injuries on the date, time and place of the incident alleged by the proseuction.

Shakuntla Devi sister of deceased Hari Om Pandey P.W.2 is a witness of fact and has proved the same corroborating the evidence of first informant (P.W.1). The last witness examined on facts is Arvind Pandey P.W.3 aged about 12 years who is son of deceased Hari Om Pandey. His deposition in the Court corroborates the testimony of P.W.1 and 2.

6. Dr. Rajendra Kumar P.W.4 is the doctor who has conducted the post-m