1. - By the judgment dated 06.06.2006, learned Additional Sessions Judge No.2, Bhilwara Camp Shahpura convicted the accused appellant for the offence punishable under Section 302 and and sentenced to undergo imprisonment for life term. The trial court also convicted the accused appellant for commission of offences punishable under Section 323 & 336 IPC and awarded sentence as under:-

(i) Section 323 IPC - Six months simple imprisonment with fine of Rs. 100/- and further to undergo one month simple imprisonment in default of payment of fine.

(ii) Section 336 IPC - Three months simple imprisonment with fine of Rs. 100/- and further to undergo one month simple imprisonment in event of default in making payment of fine.

2. Briefly stated, facts of the case are that on 04.01.04, at about 10:15 AM, a report was lodged by Nasir Ali at Police Station Jahajpur with the assertion that at about 9 AM on the same day, when he was standing at his plot for getting certain constructino work done, accused Khursheed Ali, his wife Khatoona, son Mashooq ali and one Nazir Ali came at the spot and tried to stop the construction work. As per the averments contained in the report (Ex.P/9), these persons started throwing stones and also gave beating to one Alladin who was working as 'Mistri'. Hearing the noise, Liyakat Ali, younger brother of Nisar Ali (complainant) came at the spot and then, Khursheed Ali went to his house. Khursheed Ali from terrace of his house fired a gun shot that hit Liyakat Ali resulting into his death.

3. On the basis of information aforesaid, a case was lodged, investigation conducted and a chargesheet was filed for the offences punishable under Section 302, 336 and 323 IPC. The case being exclusively triable by the court of Sessions, was committed to it.

4. Learned trial court framed charges against accused appellant for the offences punishable under Section 302, 336 and 323 IPC and on denial of the same, accused was tried.

5. The prosecution supported its case with the aid of 25 witnesses, out of whom PW/12 Nisar Ali, PW/2, Alladin, PW/14 Rayis Ali and PW/11 Shabbir were cited as eye witnesses. Prosecution also exhibited several documents to get their contents established. The accused too was examined as per provisions of Section 313 Cr.P.C to explain the circumstances available against him in the evidence adduced by prosecution. The accused denied the entire adverse evidence and tried to explain that the disputed plot measuring 65 ft x 60 ft was joint property and looking to certain dispute, no one was supposed to raise any construction thereon. He further stated that deceased Liyakat was murdered by his brother Nisar. He further stated that terrace of his house is having a boundary wall that is raised upto 5-6 ft.

6. Learned trial court after examining the evidence available on record held the accused guilty for the offence charged and sentenced accordingly.

7. In appeal, it is contended that the trial court failed to appreciate that the prosecution witnesses changed the entire case as introduced initially to the extent of changing the spot where Liyakat Ali died. It is also urged that as per available medical evidence, the injury caused to deceased could have not been received from a gun shot fire from the terrace. It is pointed out by learned counsel for the appellant that the gun shot injury as per postmortem report Ex.P/3 is horizontal and as per statements of PW/22 Dr. R.s. Goyal, the injury if would have been given from terrace, that should have been vertical. Besides above, it is also urged that even if prosecution story is accepted and the present accused appellant be held author of the gun shot, then too, looking to the existing circumstances, the case does not travel beyond an offence punishable under Section 304 Part II IPC.

8. Per contra, as per learned Public Prosecutor, adequate evidence is available on record to establish that the gun shot was given by accused himself that resulted into death of Liyakat Ali