JUDGMENT

In compliance of earlier order of this Court, an email from the Chief Judicial Magistrate, Kannauj has been received to the office mentioning therein that accused-appellant No. 1 Pratap Singh died on 10.3.2017 and accused-appellants No. 2, 3 and 4, namely, Surendra Singh and Lalit Kumar @ Mallu and Mahesh Kumar @ Tillu have been released on bail after furnishing personal bonds and two sureties each.

2. Heard Sri Patanjali Mishra, learned A.G.A. for the State and Shri G.S. Hajela, learned counsel for accused-respondents No. 2, 3 and 4. This is a Government Appeal of the year 1990 listed time and again.

3. This appeal under Section 378 (3) 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 20.12.1989 passed by learned Additional Sessions Judge, Kannauj acquitting accused-respondents who were tried for commission of offence under Sections 302 and 302/34 of INDIAN PENAL CODE , 1860 (hereinafter referred to as 'IPC').

4. Brief facts as culled out from the record are that on 10.10.1986 when Vijay Singh (deceased), who was son of complainant-Gyan Singh, had made earth beds for his field to grow vegetable, for which he got some earth dug from the adjoining runnel then on the same day at about 3.00 P.M. the accused-Pratap Singh along with his brother Surendra Singh and his son Mukesh @ Tillu and Lalit Kumar @ Mallu came from the northern back door of their house armed with country made pistol and cartridges and started squabbling with the deceased Vijay Singh about the digging of the mud, and thereafter, on the exhortation of other co-accused persons, accused Pratap Singh with intent to kill fired two shots upon the deceased, on account of which, the deceased received gun shot injury and fell down at the spot. However, Vijay Singh Neutral Citation No. - 2023:AHC:74260-DB was admitted in the hospital by the witnesses, where he succumbed to the said injuries.

5. The F.I.R culminated into charge-sheet and accused were committed to Sessions.

6. On being summoned, the accused-person pleaded not guilty and wanted to be tried. The offence for which accused was charged was triable by the Court of Sessions, hence, the accused-respondents were committed to the Court of Sessions. The learned Sessions Judge framed charge for commission of offence punishable under Sections 302 against accused Pratap Singh and 302/34 of the INDIAN PENAL CODE (IPC) against other accused persons.

7. The Trial started and the prosecution examined as many as five witnesses in support of his case, namely, PW-1 informant Gyan Singh, PW-2 Dr. R.D. Pandey, PW-3 Head Constable Sher Singh Solanki, PW-4 Dr. V.K. Bhatia and PW-5 S.I. K.N. Verma (Investigating Officer).

8. At the end of the trial and after recording the statement of the accused persons under section 313 Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge acquitted the respondents as mentioned above.

9. Learned A.G.A. for the State has submitted that the order of acquittal is not justified in the eye of law as the prosecution had very well established the case against the accused. It is further submitted by learned A.G.A. that the learned Sessions Judge has misled the evidence. Learned A.G.A. has lastly submitted the judgment impugned is erroneous and liable to be set aside.

10. 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.

11. The principles which would