JUDGMENT

Phukan, J.-This appeal by the State is directed against the judgment and order dated 16.8.1988 passed by the High Court of Allahabad in Criminal Appeal Nos. 2742, 2743 and 2338 of 1984 arising out of Sessions Trial No. 202 of 1982. The learned Additional Sessions Judge, Agra in the above Sessions Case convicted accused-respondents-Ashok Dixit and Chaman Lal under Sections 302 and 307 IPC and Section 25 of the Arms Act and sentenced them accordingly. Two separate appeals were filed before the High Court by the respondents-accused and one appeal by the State for enhancement of the sentence. The High Court dismissed the appeal filed by the State and allowed the appeals filed by the respondents-accused and acquitted them of their charges.

2. On 8.8.1982, at about 9.00 p.m., on hearing sound of gun shot coming from the house of deceased-Dr. Dubey, his brother-Bhagat Dayal Dubey-P.W.1, proceeded to the house of deceased Dr. Dubey, alongwith his two sons. In the house of the deceased, he met two police officer-Vijai Bahadur Singh-P.W.7, Station House Officer of Police Station Civil Lines, District Etawah, Sub-Inspector of Police-Uma Shanker Yadev, Raj Narain Singh-P.W.15-Compounder of deceased Dr. Dube, Shri S.K. Gupta-Advocate and one or two other persons of the locality. The house was dark as there was no electricity and two police officers took position behind the verandah of the house and P.W.1 alongwith his two sons stood near the grill of the western varendah. They heard shots from the first floor of the house where deceased Dr. Dubey, his wife deceased Manorama Dubey, her daughter Kumari Ritu-P.W.3 and Umesh Mishra-P.W.2- maternal uncle of deceased Manorama Dubey were residing. At the time, they saw accused Brijendra Kumar tumbling down the staircase to the ground floor followed by present two accused-respondents Ashok and Chaman Lal, and three accused were apprehended by the two police officers, P.W.7 and Sub-Inspector-Uma Shankar Dubey. Electricity was restored when the accused were apprehended. P.W.1 with his two sons went upstairs and found deceased Dr. Dubey lying in a pool of blood near the dining table. Deceased Manorama Dubey was lying in a pool of blood on the dewan by the side of the wall of the drawing room and Munnu Singh was lying in the injured condition. PW-2 was also found in injured condition. They were taken to the hospital by PW-1 and one Pandey a tenant on the first floor where Dr. Dubey was residing. Dr. Dubey and his wife were found dead. P.W.2 and Munnu Singh medically examined and given treatment.

3. A pistol and four live cartridges were recovered from the possession of the accused Ashok and country made pistol and five live cartridges from the possession of accused Chaman Lal and a country made pistol and two catridges were recovered from accused Brijendra Kumar. The two police officers did not go upstairs where the occurrence took place. They took the accused persons to the police station. Police after investigation submitted charge-sheet. The FIR-Exh.1 was lodged by P.W.1 on the basis of statement of injured Munnu Singh but he was not examined, therefore, the High Court was of the opinion that the FIR cannot be accepted as corroborating piece of evidence of the statement of P.W.1. Accused Brijendra Kumar died.

4. We have heard Shri K.N. Nagpal, learned counsel for the appellant and Shri K.T.S. Tulsi, learned senior counsel for the accused-respondets.

5. Umesh Mishra-PW2 uncle of the deceased-Manorama and Ritu-PW3 daughter of deceased-Dr. Dubey were the eye witnesses. PW-2 used to live in the house of deceased-Dr. Dubey. According to PW-2 while he along with deceased-Dr. Dubey, his wife deceased-Manorama and their daughter-Ritu PW3 were sitting, Munnu Singh, compounder of Dr. Dubey called Dr. Dubey and he went out. They heard gun shots stood up and after some time Dr. Dubey came and fell down near the dining table. Dr. Dubey was followed by three assailants. One assailant fired at deceased-Manor