JUDGMENT :

R. BANUMATHI, J.

1. This appeal is preferred by the State of Gujarat arising from the judgment and order dated 05.03.2009 in Criminal Appeal No.127 of 2001, in and by which the High Court of Gujarat acquitted the accused No.2-Kalusinh @ Harpalsinh Bhamarsinh from the offence under Section 302 and other offences.

2. Case of prosecution is that on 23.11.1997 at about 9.00 p.m. accused No.1-Ashok Singh Jayendra Singh, accused No.2-Kalusinh, accused No.3-Gayendra Singh, accused No.4-Balbadhra Singh, accused No.5-Dhermandra Singh along with their servant accused No.6-Mohanbhai Ramjibhai and others were ploughing the disputed land regarding which there was a civil suit pending in the civil court. According to the prosecution the said land used as road was used by the complainant and his family members for having ingress and egress. On the date of the incident i.e., on 23.11.1997 at about 9.00 p.m. when accused persons were ploughing the land, the complainant party intervened and objected to their act in carrying out the ploughing.

3. Thereafter, accused Nos.1 and 2 fired three gun shots which hit deceased Somiben, wife of Hirabhai (PW-5), Ramanbhai (PW-6) and Nandaben (PW-7) due t