JUDGMENT :

Ajai Tyagi, J.

1. Heard Sri Patanjali Shukla, learned A.G.A. for the State and Sri Satya Prakash Shukla, learned counsel for respondents perused the record.

2. This appeal under Section 378 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), at the behest of the State, has been preferred against the judgment and order dated 28.4.1984 passed by Sessions Judge, Mirzapur acquitting accused-respondents who have been tried for commission of offence under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') read with Section149 in Sessions Trial No.66 of 1983.

3. Brief facts as culled out from the record are that the evidence of Ramakant ( PW-1) brother of the deceased, is that while his brother, Nageshwar Chaubey, was coming from Semariya to Charkonava and had reached near the road culvert, Krishnadeo alias Jhala, accused, who was lying in ambush alongwith other accused on the northern side of the road, fired a shot on Nageshwar Chaubey, which struck him (Nageshwar Chaubey) in his leg. Rama Kant, Vishwanath, Baggar, Ram Subhag, Ram Prasad and Alagudeo alias Raj Narain were accompanying Nageshwar Chaubey at that time, having lathis in their hands. They started running towards west and stationed themselves after crossing the road culvert. As Nageshwar Chaubey had suffered gun shot injury in his leg, he could not run fast. Krishna Deo, Kailash Deo, Harish Chandra Deo and Bachchan, accused, were seen chasing Nageshwar Chaubey firing shots from their guns. The other accused were also giving a chase to Nageshwar Chaubey, who fell down at a distance of about 80 paces from the culvert towards west as a result of the injuries suffered by him. Thereupon, Dukhran accused, hit him with gandasi a sharp cutting weapon, and Budhiram, accused, took out a hand bomb from his jhola and hurled it towards the persons, who had moved ahead and had kept themselves cancelled in the forest. The bomb exploded and produced a loud sound and smoke. Budhiram, accused, then took the rifle of the deceased and thereafter, all the accused fled away in the jungle. Ram Kant and others then came to the place where Nageshwar was lying in pool of blood. It was found that the life had ebbed out as a result of the injuries caused on his person. Long standing enmity is said to be the motive for ending the life of Nageshwar Chaubey .

4. On F.I.R. the investigation was moved into motion. Investigation Officer took up the investigation, visited the spot and prepared the site plan. Investigation Officer collected the blood stained and plain earth from the place of occurrence and live as well as empty cartridge were also recovered. Search memos were prepared. The body of the deceased was sent for postmortem where the postmortem was conducted and the postmortem report was prepared by Doctor.

5. After the completion of investigation, charge sheet was submitted by the Investigation Officer. The case being exclusively triable by the Court of Sessions was committed to the Court of Sessions. The learned Trial Court framed charges under Sections 302, 148, 149 and 379 of IPC. The accused persons denied the charges and claimed to be tried.

6. Prosecution examined oral witnesses and filed documentary evidence. After prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C., accused examined one witness in their defence.

7. Learned A.G.A. has submitted that the learned Judge below has misread the evidence and that the judgment is based on surmises and conjectures. It is further submitted by learned A.G.A. that First Information Report offence under Section 302 read with Section 149 of I.P.C. was committed and that the judgment of the court below is erroneous..

8. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would require to be discussed.

9. The principles which would govern and regulate the hearing