JUDGMENT

UNTWALIA, J.:— In the occurrence which took place at about 6.00 A. M. on the 23rd of July, 1967 in Village Ubboke one Ajit Singh was killed by a rifle shot fired by Birkha Singh- since dead. In the same occurrence was injured by rifle shot P. W. 5 Dalvinder Singh. Gajjan Singh the appellant in this appeal by special leave is said to have fired that shot. Birkha Singh was convicted by the trial Judge under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. The appellant was convicted for the murder of Ajit Singh with the aid of Section 34 of the Penal Code and sentenced to life imprisonment. For attempting to murder Dalvinder Singh he was convicted under Section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for 7 years. Birkha Singh died after his conviction and Gajjan Singhs convictions and sentences which were directed to run concurrently by the trial Judge have been maintained by the High Court of Punjab and Haryana.

2. No argument of any substance could be advanced on behalf of the appellant in so far as his conviction under Section 307 of the Penal Code is concerned. On having appreciated the prosecution case and the evidence in support of it, we found no error either of law or of fact in the appellants conviction under Section 307 of the Penal Code. The imposition of sentence of 7 years rigorous imprisonment is also justified.

3. We, however, do not find it possible on the facts found on the basis of the evidence in the case to sustain the appellants conviction under Sections 302/34 of the Penal Code for the murder of Ajit Singh. Dalvinder Singh is the son of P. W. 4 Arur Singh who was the first informant in the case. There were previous murder cases and security proceedings between the family of Arur Singh and that of the appellant. Indisputably there were previous criminal and civil cases and a bad blood between the parties. The deceased Ajit Singh was a nephew of Arur Singh in the third degree. It has, however, not come in evidence as to whether he had any enmity with the party of the accused or whether he had figured as a helper or witness on the side of Arur Singh or Dalvinder Singh.

4. The prosecution story as told by the eye-witnesses in including P. Ws. 4 and 5, in short, is that Arur Singh and his son Dalvinder Singh were present at their haveli where Ajit Singh and P. W. 7 Pritam Singh also came. They were chatting standing in front of the haveli. At about 6.00 A. M. on the date of the occurrence 8 persons are said to have come in a mob, out of them, according to the prosecution case, Birkha Singh (since dead) and Gajjan Singh (Appellant) were armed with rifles. Out of the other 6 accused who have been acquitted by the trial Judge, one is said to have been armed with a gun and the other 5 with spears. Here we quote the prosecution case form the evidence of Dalvinder Singh himself. It runs as follows:

"They challenged us saying that we will be taught a lesson for the murder of their men and getting their men imprisoned. Ajit Singh looked that side. Birkha Singh fired his rifle hitting AjitSingh near his left eye and he fell down. GajjanSingh fired at me hitting near the shoulder and the bullet passed though the back. I also fell down.Ajit Singh died at the spot. The accused continued firingtheir weapons and the other raised lalkaras that anybody coming near would not be spared. After sometime the accused left the place."

5. More or less to the same effect is the evidence, of the other eye-witnesses. The High Court has maintained the appellantsconviction with the aid of Section 34 for causing the death of Ajit Singh by stating in its judgment thus :

"According to the prosecution evidence, the appellant and his co-accused, since acquitted and the one who died, had come armed and Birkha Singh fired at Ajit Singh as a result of which he died and Gajjan Singh also fired hitting Dalvinder Singh. After the occurrence they went together carrying their arms.