Honble GARG, J.–The abovementioned two appeals are being decided by this common judgment as in both of them common questions of facts and law are involved and both of them have been preferred against the same judgment and order dated 7.9.2001 passed by the learned Addl. Sessions Judge (Fast Track), Bikaner in Sessions Case No. 24/2001.

(2). It may be stated here that in that Sessions Case No. 24/2001, nine accused persons were tried and out of nine accused persons, the learned Addl. Sessions Judge (Fast Track), Bikaner through impugned judgment and order dated 7.9.2001 convicted and sentenced the four accused persons, namely, Ramnarayan, Banwari, Mohanlal and Bastiram (accused appellants of appeal No. 798/2001) in the following manner:-

Name of accused appellants convicted under section

1. Banwari2. Bastiram 302, 302/34 IPC Life Imprisonment & fine of Rs. 1500/-, in default of payment of fine, to further undergo two months RI.

307/34 IPC Five years RI and fine of Rs. 500/-, in default of payment of fine, to further undergo one month RI.

3. Mohanlal

4. Ramnarayan 302/34 IPC Life Imprisonment & fine of Rs. 1500/-, in default of payment of fine, to further undergo two months RI.

307, 307/34 IPC Five years RI and fine of Rs. 500/-, in default of payment of fine, to further undergo one month RI.

All the above substantive sentences were ordered to run concurrently.

It may further be stated here that by the same judgment and order, the learned Addl. Sessions Judge (Fast Track) acquitted the above four accused appellants of appeal No. 798/2001 for the offence under sections 148, 341, 323, 323/149, 324, 324/149 IPC and he also acquitted accused appellants Ramnarayan for the offence under section 27 of the Indian Arms Act and accused appellant Banwari for the offence under section 25 of the Indian Arms Act.

It may further be stated here that by the same judgment and order, the learned Addl. Sessions Judge (Fast Track) acquitted the remaining five accused persons, namely, Rampratap, Bhagwanaram, Mangilal, Ramjus and Hariram (accused respondents of appeal No. 528/2002) of all the charges framed against them i.e. for the offence under sections 148, 323, 323/149, 324, 324/149, 341, 307/149, 302/149 IPC. Against acquittal of these five accused persons, the State of Rajasthan has preferred appeal No. 528/2002.

D.B. Criminal Appeal No. 798/2001

(3). The facts giving rise to this appeal, in short, are as follows:-

On 20.5.1995 at about 7.15 PM, PW17 Tara Chand, SHO Police Station Nokha District Bikaner received a cryptic telephonic message from unknown person to the effect that in Ward No. 2 village Nokha, Ram Pratap Bishnoi (accused, who was acquitted by the learned Addl. Sessions Judge (Fast Track)) and Sohan Lal Bishnoi (PW4), who are real brothers, were fighting and arms, lathies, barchiyas etc. were being used in that fighting and two persons had died. That information was reduced in writing by PW17 Tara Chand in Rojnamcha Ex.P/52 and thereafter, he alongwith Hardeep Singh, SI (PW13), Mangilal, ASI (PW6), Balraj Singh, ASI and other police officials reached at the place of occurrence.

The further case of the prosecution is that at the place of occurrence, PW4 Sohanlal gave a parcha bayan Ex.P/17 to PW17 Tara Chand at about 8.30 PM on 20.5.1995 stating inter-alia that they are four brothers and all the brothers had their own house adjacent to each other and sometime back, his brother Genaram (PW1) installed a Dharm-kanta on Roda road and thereafter, after five years of that, accused Rampratap (who has been acquitted by the learned Addl. Sessions Judge (Fast Track)) also installed a Dharm-kanta on that road and because of that, relations between them were not cordial. It was further stated in the parcha bayan Ex.P/17 by PW4 Sohanlal that at about 6.30-6.45 PM, he and Om Prakash (PW3) son of PW1 Genaram were sitting in the Jameshwar Temple, which was near to his house and at that time, his two sons, namely, Ramnarayan (hereinafter referred to as ``the

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