Judgment :-

J.M. PANCHAL, J.

1. The appellant in Criminal Appeal No.757 of 2005 with his father Sabbir, son of Ilahi Bux was charged for commission of offences punishable under Section 302 read with Section 34 Indian Penal Code (IPC) and Section 307 read with Section 34 IPC for causing death of Wilayat and attempting to commit murder of Rahmat. The learned Sessions Judge, Nainital by judgment dated September 18, 1982 passed in Criminal Sessions Trial No.17 of 1981 convicted the appellant under Sections 302 and 307 for causing murder of deceased Wilayat and for making attempt to murder Rahmat and sentenced him to life imprisonment for commission of offence punishable under Section 302 as well as R.I. for ten years for commission of offence punishable under Section 307 IPC. His father Sabbir was convicted under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. Mr. Sabbir was sentenced to life imprisonment for commission of offence under Section 302 read with Section 34 IPC and R.I. for seven years for commission of offence under Section 307 read with Section 34 IPC.

2. Feeling aggrieved, the appellant and his father preferred Criminal Appeal No.1034 of 2001 in the High Court of Uttaranchal at Nainital. During the pendency of the said appeal, Sabbir, who was father of the appellant, expired. Therefore, the appeal filed by the appellant was considered by the High Court. The Division Bench of the High Court, by judgment dated December 24, 2004, held the appellant guilty for commission of offence of culpable homicide not amounting to murder punishable under Section 304 Part-I IPC and sentenced him to undergo R.I. for 10 years and a fine of Rs.5,000/-in default R.I. for one year. The High Court also found the appellant guilty for commission of offence under Section 308 IPC and sentenced him to R.I. for two years and fine of Rs.1,000/- in default R.I. for three months. Feeling aggrieved, the appellant has filed Criminal Appeal No.757 of 2005 by Special Leave.

3. As noticed earlier, the appellant was acquitted of the offences punishable under Sections 302 IPC and Section 307 IPC. Therefore, feeling aggrieved by the said acquittal, the State of Uttaranchal has filed Criminal Appeal No.758 of 2005 by Special Leave.

4. Both the appeals arise out of the common judgment dated December 24, 2004 rendered by the Division Bench of the High Court of Uttaranchal at Nainital. Therefore, this Court proposes to dispose them of by this common judgment.

5. The facts emerging from the record of the case lie in narrow compass. The appellant is resident of Village Darauki Madhaia, P.S. Kichha, District Nainital. In the village, there is a Panchayat pond. The length of the pond from east to west is about 40 to 50 paces whereas its width from north to south is about 25 to 30 paces. The said pond is meant for common use of all the villagers. The people of the village used to take earth from the said pond for maintenance of their houses and other household purposes. The field of the appellant is located on the southern side of the pond. Between the pond and the field of the appellant, there is a palm tree. The boundary of the field belonging to the appellant is extended upto the said palm tree after which the boundary of the pond begins. On the western side of the pond, there is a house of one Sagir and on the west side of the said house, there is a passage whereas on the west side of the passage there is abadi of the village. Injured Rahmat and deceased Wilayat were also residents of this very village. From the place which is near to the field of the appellant, deceased Wilayat used to dig and take earth from the pond. This was not approved by Sabbir who was father of the appellant and he used to object to the digging of soil from the pond on the ground that the field belonging to him would get damaged. The incident in question took place on October 13, 1980. On that day, in the morning at about 5.00 a.m., Rahmat, with his deceas