ORDER :

We have heard the learned counsel for the parties at very great length.

2. There are three appeals before us : Criminal Appeal No. 98 of 2007 which has been filed by the complainant impugning the acquittal of Khuma Ram whereas Criminal Appeal No. 963 of 2008 has been filed by the State of Rajasthan impugning the acquittal of Raju for the offence under Section 302 of the Indian Penal Code and his conviction under section 304 Part I of the Indian Penal Code and the third has been filed by the State of Rajasthan being Criminal Appeal No. 964 of 2007 impugning the acquittal of Khuma Ram. In the course of the trial, 13 persons were tried in Sessions Case No. 34 of 1999 for offences punishable under Section 302/34 of the IPC. The trial court in its judgment dated 4th January, 2001 convicted the accused as under:

"The accused Raju @ Raj Kumar is hereby held guilty for committing offence under Section 302, 323 r/2 149, 147 IPC and Section 3/25 and 3/27 of arms Act but he is acquitted from the offence punishable under Section 302 r/2 Section 34 and 149, 448 IPC.

"The accused Shankar is found guilty for committing offence under Section 147, 323, 4/w 149 IPC an Section 30 of arms Act but he is acquitted from the offence punishable under Section 448 IPC.

The accused Vinod, Dwarka Prasad, Mishri Lal @ Parmeshwar, Nagarmal, Dalu Ram, Madan Lal, Hari Prasad, Babu Lal and Sukhdeva Ram are hereby held guilty for committing offence under Section 147, 323 r/w 149 IPC but are acquitted from the offence punishable under Section 448 IPC."

3. Two appeals were thereafter filed in the High Court, one by Raju and the other by Khuma Ram.The High Court, has, by the impugned judgment acquitted Khuma Ram in to to and modified the conviction and sentence of Raju from one under Section 302 of the IPC to one under Section 304 Part II of the IPC. He has already undergone seven years sentence. As mentioned earlier, three appeals mentioned above have been filed against the judgment of the High Court.

4. We have perused the judgment of the High Court with the help of the learned counsel for the parties. We have also gone through the evidence with their assistance. We find that several reasons have been given by the High Court with respect to the acquittal of Khuma Ram.It has been held that the story that Khuma Ram too had fired at Mahesh is not supported by the circumstantial evidence as it appeared that both the injuries had been caused by the shot fired by Raj Kumar. For arriving at this conclusion, the High Court has relied on the evidence of P.W. 15 Dr. T.S. Chaudhary who had conducted the autopsy on the dead bodies. Moreover, it has been found by the High Court that Khuma Ram did not belong to the village in question, had no occasion to see the members of the complainant party and the possibility that it was a case of over implication could not be ruled out. The Court also noticed that six of the accused party had sustained injuries which had not been explained by the prosecution and as Khuma Ram had not sustained any injury which indicated that he may not have been present. We are, therefore, of the opinion that no interference is called for insofar as Criminal Appeal Nos. 98 and 964 of 2008 are concerned. These appeals are, accordingly, dismissed.

5. We now take up Criminal Appeal No. 963 of 2008.

6. It has been argued by Dr. Manish Singhvi and Ms. Ridhima Garg the learned counsel for the appellant that in the light of the fact that the primary role had been attributed to Raju respondent and the fact that there were several injured witnesses to support the prosecution story the observations of the High Court that the case of the respondent was covered by Exception 2 to Section 300 of the IPC was not called for. It has been pointed out that as per the prosecution story the accused party had gone near the house of the complainant party and had fired indiscriminately at them killing two persons. The learned counsel for the respondent-accused has, however, poin