JUDGMENT

G.P. Mathur, J.-State of Rajasthan has preferred this appeal by special leave against the judgment and order dated 31-1-1991 of Jaipur Bench of High Court of Rajasthan by which the appeal preferred by the respondents against their conviction and sentence was allowed and they were acquitted. The learned Additional Sessions Judge, Kishangarh (Alwar) had convicted the respondents under Sections 148, 307, 302 and 448 IPC and had sentenced them to one year RI, 7 years RI and a fine of Rs. 1000/-, imprisonment for life and a fine of Rs. 100/- and one month RI respectively under each count. The respondent No. 1 Bhawani had been further convicted under Section 3/25 of the Arms Act and had been sentenced to one year RI and a fine of Rs. 500/-.

2. According to the prosecution, the incident took place at about 5.30 p.m. on 21-12-1985 in village Bhajnawas when PW1 Daya Ram was cutting fodder in his Nohara. The respondents Bhawani armed with gun, Hari Singh armed with country-made pistol and three others namely Kishanlal armed with gun, Ramjilal armed with pistol and Amilal armed with country-made pistol suddenly came there and after giving abuses, started firing from their respective weapons. It is said that some other persons who were armed with lathis and farsies were standing outside the Nohara. As a result of firing, two persons, namely, Deshraj and Hoshiar died on the spot and several others received gunshort injuries. An FIR of the incident was lodged by PW1 Daya Ram, brother of Deshraj, deceased, at 8.00 p.m. on 21-12-1985 at P.S. Mundawar, which is 17 kilometers from the place of occurrence in which 16 persons were named as accused. The motive for the assault is said to be a litigation regarding the Nohara which was pending between the parties in the Court of SDM, Kishangarh. On the basis of the FIR, a case was registered and usual investigation followed. Three accused, namely Kishanlal, Ramjilal and Amilal were not prosecuted as they had absconded. The prosecution, however, submitted charge-sheet against 35 accused. The learned Additional Sessions Judge held that from the evidence on record it was proved beyond doubt that Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal had formed an unlawful assembly and in prosecution of their common object they had trespassed into the Nohara and had caused death of Deshraj and Hoshiar and gunshot injuries to others by firing at them. The remaining accused who were alleged to have been standing outside the Nohara and were alleged to have been armed with lathis and farsies and had not been assigned any specific role of causing any injury to anyone, were acquitted. The respondents Bhawani and Hari Singh preferred an appeal against their conviction and sentence which has been allowed by the High Court by the judgment and order which is under challenge in the present appeal.

3. Before we deal with the submissions made by learned counsel for the parties, it will be advantageous to briefly take note of the evidence which has been adduced by the prosecution. PW1 Daya Ram has stated that a litigation regarding Nohara was going on with Kishanlal (absconding accused) in the Court of SDM, Kishangarh, due to which the accused bore enmity with him. At about 5.30 p.m. on the date of the incident, he was cutting fodder in the Nohara, when Bhawani and Kishanlal armed with guns, Hari Singh and Amilal armed with country-made pistols, Ramjilal armed with pistol and 11 other accused armed with lathis and farsies came there. Kishanlal gave abuses and thereafter all the five accused armed with fire arms started firing from their respective weapons. Deshraj, Leela, Daulat, Ratan, Makhan and Babulal who were sitting in the Baithak came outside, after hearing the abuses and sound of gunfire. The accused also fired upon them due to which they received gunshot injuries. The sound of gunfire also attracted Bholu, his wife Santosh and Hoshiar to the Nohara, but they also fell victim to the shots fired by the accus