The testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness.

VIJAY LAXMI, J.

1. Challenge in this appeal is to the judgment and order dated 26.03.1982 passed by the V, Additional District and Sessions Judge, Hardoi acquitting the accused respondents, namely, Kailash A1, Ram Bilas A2, Dinesh A3 and Ramesh A4 under Sections 148 and 307/149 I.P.C. in Session Trial No.569 of 1980. Admittedly, cross case, Sessions Trial No.137/79 State v. Ram Asrey of this case has ended in acquittal and no appeal has been filed challenging the said acquittal by the State.

2. The incident occurred on 06.01.1978 at 9.00 a.m. in the Barotha of Ram Asrey, Complainant, PW1 (herein described as complainant) who suffered fire arm injuries in the incident. The FIR written by Shashi Prabha Devi, PW2 the daughter of the complainant on his dictation was lodged on the same date at P.S. Mallawan. The accused persons were charged under Section 148 and 307/149 I.P.C. All the accused pleaded not guilty and claimed to be tried. The evidence was recorded separately in said trials and separate judgments were delivered by the trial Court.

3. The case of the prosecution as unfolded during the trial through F.I.R. and the evidence may be described as under:-

The complainant Ram Asrey and the accused Kailash Narain Tripathi, Ram Bilas Son of Lalta, Dinesh and Ramesh sons of Goverdhan are residents of the same village Lacchipur, Police Station Mallawa, District Hardoi. There has been enmity of Ram Asrey with accused Kailash, Ram Bilas sons of Lalta and Dinesh, Suresh and Ramesh sons of Goverdhan since the Case Crime No.386 of 1976 Sarkar v. Kailash Narain and Others under Section 107/116 Cr.P.C. was initiated by the complainant against them. The accused Kailash and others became inimical with the complainant and were trying to kill Ram Asrey since then. It is in this background that on 06.01.1978 at about 9.00 a.m. when Ram Asrey was sitting in his Barotha, the accused Kailash A1, Ram Bilas A2, Dinesh A3, Ramesh A4 being armed with guns alongwith Ram Chandra reached on his chabutra and attacked Ram Asrey. All the four accused started firing upon the complainant who got injured. When he tried to rush inside his house raising outcry, the accused Kailash, Ram Bilas, Dinesh, Ramesh and Ram Chandra entered his Barotha and again fired upon the complainant. He was hit on his right shoulder and left buttock below his waist. Hearing his outcry his son and other children reached the spot. The accused made one fire from chabutara and two fires were made by them on reaching barotha. One of the fire made by them in Barotha hit Ram Chandra, who fell down on the spot and died. This incident was seen by the children of the complainant who had come to the door of the galiyara on hearing hue and cry raised by the complainant. The site plan of the occurrence shows that there is a chabutara in front of the house of the complainant Ram Asrey and then in the west of this chabutara there is a barotha and in the north west of this barotha there is a galiyara which leads to the courtyard inside the house and it is in the north west of this courtyard that there is a staircase leading to the first floor on the roof.

4. The report was written by Shashi Prabha on dictation of the complainant which is Exhibit Ka1 which was sent to police station Mallawan, Hardoi through chowkidar Jai Jai. The thana Mallawan is at a distance of about 3 miles from the place of the occurrence. Investigation was conducted by Ram Lal Verma PW4 S.O. GRP who visited the spot on 06.01.1978 and prepared site plan exhibit Ka-4, recorded the statement of the complainant Ram Asrey, his daughters Km. Shashi Prabha, Km. Shashi Rashmi, his son Ashwini Kumar, and wife Smt. Swaroop Rani. The statement of the complainant Ram Asrey was recorded at his house. S.O. completed the investigation and the charge sheet exhibit Ka-5 was submitted against 4 accused persons.

5. The proceeding under Section 302 I.P.C. was initiated in cross case ST. no. 137/79 against Ram Asrey and his son Sarangdhar. T