S.S. BYAS, J.—Since these two connected appeals - one against conviction and the other against acquittal-arise out of one and the same judgment of the learned Sessions Judge, Churu dated May 11. 1982, they were heard together and are disposed of by a common judgment. By the impugned judgment, Accused Dharamveer was convicted under section 302, I.P.C. and sentenced to imprisonment for life with a fine of Rs. 50/- and accused Shubhram was convicted under sections 304 and 323 I.P.C. and was sentenced to seven years rigorous imprisonment with a fine of Rs. 50/- on the first count and eight months rigorous imprisonment on the second count. By the same judgment, four persons Sumersingh, Ramsingh, Rooparam and Madansingh were convicted under section 323 I.P.C. and each was sentenced to eight months rigorous impnsonment, but they alongwith three others Dayaram, Mangeram and Shubhram, were acquitted of the offences under sections 302/149, 148,307/149, 452 and 392 I.P.C. Accused Dharamveer and Shubhram have come-up in appeal and challenge their convictions, while the State, in its appeal, challenges the acquittal.

2. The incident is alleged to have taken place at about 11.00 or 11.30 a.m. on May 30, 1981 in village Chandgoti P.S. Hamirwas district Churu, in which two members of the complainant party, viz., Lalchand and his son Singh Ram, and one member of the accused party, viz., Mool Chand alias Moolaram, lost their lives.

3. Briefly recounted, the prosecution case is that at about 8.00 a.m. on May 30, 1981, Vimla the daughter of the deceased-victim Singhram and Guddi daughter of accused Badansingh (both the girls being 6/7 years in age), while playing in the street, picked-up quarrel. The mother of accused (appellant) Shubnran, who is also the grand- mother of Guddi, gave a beating to Vimla. Vimla went to her house and apprised her father Singhram of her being beaten by Shubhrams mother. Singhram went to the house of accused Shubhram, reprimanded his (Shubhrams) mother and came back to his house. At about 11.00 or 11.30 a.m., Lalchand (father of Singhram) was sitting in the Polli of his Bakhal (house). The other inmates of the family, viz , PW 1 Sajjana, PW 2 Smt. Krishna, PW 3 Mahendra, PW 4 Smt. Nimmo and Singhram were sitting in the Varandah of the house. All of a sudden, nine persons viz., Dharamveer, Ramsingh, Dayaram, Mangeram, Rooparam, Badansingh alias Badnaram, Sumersingh Shubhram and the deceased Moolchand alias Moolaram stormed into the Bakhal. Dharamveer had an axe, Moolaram had a jelly and the rest had lathis. They asked Lalchand to drive out Singhram as they wanted to kill him because he had abused their mother in the morning. Hearing the noise. Smt. Santosh, Smt. Krishna, Smt. Sajna, Smt. Nimmo and Singhram came out in the Bakhal. As soon as Singhram came out, nine miscreants made an assault on him and started administering blows to him with their weapons. Lalchand and other inmates tried to rescue Singhram. Accused Shubhram struck a blow of his lathi on the head of Lalchand. Accused Dharamveer struck a blow of his axe also on the head of Lalchand. Lalchand fell down with profuse bleeding from his wounds. Singhram went into the Varandah brought a gun and in order to save himself and other inmates of the family, fired a shot. The shot hit Moolchand alias Moolaram. Accused Shubhram struck a blow of his lathi on the gun of Singhram. The gun got broken. Thereafter Singhram was struck blows by the nine miscreants. The other inmates of the house also sustained injuries when they tried to intervene. The accused, while fleeing away , took away the broken gun with them. Lalchand did not survive and passed-away instantaneously. His son Harpath (PW 5), who had gone to Rajgarh, returned after some time. He found his father lying dead and his brother Singhram lying in a pool of blood with multiple injuries and in unconscious state. He further noticed Krishna, Nimmo, Sajna and Mahendra lying injured. Smt. Sajna (PW 1) narrated the inci

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