JUDGMENT

Madan B. Lokur, J.

1. Leave granted in S.L.P. (Crl.) No.5240 of 2004.

2. The question for our consideration is whether there is any evidence that would warrant setting aside the conviction of the appellants by the Trial Court and affirmed by the High Court. In our opinion, the answer is in the negative and we uphold the conviction of the appellants for an offence punishable under Section 302 of the Indian Penal Code read with Section 34 thereof.

The facts:

3. On 20th May, 1995 at about 7.15 p.m. Tara Chand, Station House Officer in Police Station Nokha, District Bikaner in Rajasthan received a cryptic telephonic message. The message was from an unknown person and was to the effect that in Ward No.2 in village Nokha, Ram Pratap and Sohan Lal (PW-4) who are real brothers were involved in a fight. Several others had joined in and firearms, lathis, barchis and other weapons were used in the fight. It was also informed that two persons had died in the incident.

4. Tara Chand reduced the information in writing in a roznamcha and then reached the place of occurrence along with some other police officers.

5. At the place of occurrence, Sohan Lal gave a parcha bayan to Tara Chand at about 8.30 p.m. Sohan Lal stated that his brother Genaram (PW-1) had installed a dharam kanta or a weighbridge on Roda Road and about five years later Ram Pratap also installed a weighbridge on the same road. As a result of the installation of the second weighbridge, the relationship between Genaram and Ram Pratap was not cordial.

6. Sohan Lal further stated that sometime between 6.30 p.m. and 6.45 p.m., he and Om Prakash (PW-3 - son of Genaram) were sitting in a temple near his (Sohan Lal's) house. At that time his two sons, namely, Ram Narain (hereafter referred to as deceased Ram Narain) and Mohanlal (hereafter referred to as deceased Mohanlal) came out of his house and went towards Ram Pratap's house. When they were near his house, they were attacked by the four appellants, that is, Bastiram, Mohan Lal, Ramnarayan and Banwari. These four appellants were armed with pistols. Also participating in the attack were Mangilal, Ramjus, Hariram, Ram Pratap, Bhagwanaram and Maniram who were armed with either a barchi or a jayee or a sela.

7. Sohan Lal further stated that his two sons, deceased Ram Narain and deceased Mohanlal, were surrounded by the ten persons aforesaid who made a hue and cry that they should be killed. Thereupon Om Prakash and Sohan Lal's two other sons, namely, Rameshwarlal (hereafter referred to as deceased Rameshwarlal) and Rajaram (PW-10) rushed towards the site.

8. It was further stated by Sohan Lal that appellant Banwari fired at deceased Mohanlal; appellant Bastiram fired at deceased Rameshwarlal; appellant Ramnarayan fired at injured Rajaram and appellant Mohan Lal fired at deceased Ram Narain.

9. Sohan Lal also stated that deceased Mohanlal died on the spot while injured Rajaram, Ram Narain and Rameshwarlal were taken to a hospital. Ram Narain and Rameshwarlal later succumbed to their injuries.

10. Before his death on 22nd May, 1995 deceased Rameshwarlal gave a dying declaration on 21st May, 1995. In his dying declaration deceased Rameshwarlal stated that appellant Bastiram had fired at deceased Ram Narain who died on the spot. He stated that appellant Bastiram also fired at deceased Mohanlal and appellant Mohan Lal fired at him (deceased Rameshwarlal). Deceased Rameshwarlal also stated that appellant Banwari fired at Maniram and that his brother Goverdhan also arrived at the scene and Maniram Patwari fired at him. The dying declaration is clearly at variance with the parcha bayan of Sohan Lal.

11. That Maniram (from Ram Pratap's group) died on the spot is not in dispute. In this regard, we were given a copy of the judgment and order dated 7th September, 2001 in Sessions Case No. 21 of 2001 wherein the State had accused Sohan Lal and members of his group of having murdered Maniram and causing injuries to others. In the decision, Sohan Lal